Opinion
No. 99-0208.
May 10, 2007.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT, NEW TRIAL AND REMITTITUR
INTRODUCTION
The plaintiff, David Hathaway (Hathaway), and the other plaintiffs (collectively plaintiffs) sued the defendant, Raytheon Engineers and Constructors, Inc. (Raytheon), for negligence that caused Hathaway's injuries when he fell while working on the Maurice Tobin Memorial Bridge (Tobin Bridge) in Boston as an employee of Erie Interstate Contractors (Erie). The jury returned a verdict for the plaintiffs in the total amount of $7,950,000. Pursuant to Mass. R. Civ. P. 50(b) and 59(a), Raytheon moves this court for judgment notwithstanding the verdict, a new trial, and remittitur.
Raytheon has also moved to amend its motion for judgment notwithstanding the verdict, or in the alternative, has moved the court to reconsider the calculation of final judgment pursuant to Mass. R. Civ. P. 60(b). The court decides the interest issue separately.
Determining that the contracts were ambiguous as to whether Raytheon shared safety responsibilities, the court determines that it correctly submitted the ambiguities to the jury for its determination. Finding that the testimony of a co-worker that Hathaway looked at him before stepping onto a plank placed on a ladder between lift trucks was inadmissible hearsay, the court determines that it correctly excluded the evidence. Finally, the court determines that the jury award was supported by the evidence. The court denies all relief requested by Raytheon.
BACKGROUND
On February 3, 1993, Massport contracted with Raytheon (Massport-Raytheon Contract) for architectural and engineering services related to painting the Tobin Bridge in Charlestown and Chelsea. As part of the Massport-Raytheon Contract, Raytheon agreed to "inspect, test, analyze and provide a painting program for portions of the Maurice Tobin Memorial Bridge," which included structural steel elements, handrails, columns, and the containment area required for cleaning and painting within the work areas. Raytheon agreed to paint the bridge's structural steel in phases 4, 5, 6, and 9 of the project. The Massport-Raytheon Contract was amended on August 14, 1996 (Amended Contract) "to provide additional scope of services in connection with Construction Phase and Resident Inspection Services for completion of Phase 1 and environmental matters for Phases 1 and 4; and to increase [Raytheon's] compensation by $40,666 for a new overall contract amount of $547,116."
Ebasco Services, Inc.(Ebasco), Raytheon's predecessor in interest, was the original party named in the contract with Massport until the contract was amended to reflect Raytheon's acquisition of Ebasco in June 1996.
On June 28, 1996, Massport entered into an agreement with Erie in which Erie agreed to paint part of the Tobin Bridge for $3,996,280 in phases 1 and 4 of the painting project (Massport-Erie Contract). As a result of the Massport-Raytheon Contract, the Amended Contract, and the Massport-Erie Contract, Raytheon and Erie shared the responsibility for painting the Tobin Bridge in stages, with Raytheon maintaining oversight duties.
On April 29, 1997, while working as an Erie employee at the Tobin Bridge site, Hathaway fell off the top of a lift truck and was seriously injured. He, his wife and children sued the defendants for negligence and loss of consortium. In March 2006, the jury found that Raytheon was negligent and that the negligence caused the plaintiffs' injuries. Hathaway's total personal award was $5,250,000. Mrs. Hathaway was awarded $2,000,000 for her loss of consortium claim, and Hathaways' two minor children each received $350,000 for their loss of consortium claims.
The Evidence
The evidence at trial included testimony about Hathaway's accident, expert testimony about job site safety and industry practices, and the three contracts.
A. The Accident
1. Eyewitness Testimony
Hathaway started working for Erie about two weeks before the accident. At trial, Hathaway first said that he had no memory of how the accident happened. He said that he believed he was handing panels up to a co-worker just before the accident. He remembered reaching up, leaning out, and that a railing 3.5 to 4 feet above the floor of the box truck gave way. There was a discrepancy in Hathaway's memory between 1999 and 2004 as to whether the railing collapsed in front of or behind him.
Roger Perreault (Perreault), who was one of Hathaways former co-workers at Erie, testified that although he did not see Hathaway fall, he saw him standing one foot away from the truck's railing immediately before the accident. Hathaway handed a plank to him and Perreault looked away for a few seconds. Next, Perreault heard tires screeching in the roadway below, and turned to see Hathaway in the road beside the truck. Perreault said that he noticed the railing close to where Hathaway had been standing had collapsed inward onto the truck's platform surface. Despite not seeing Hathaway fall, Perreault said that in his experience, he and other workers sometimes had to climb over the railing to reach the panels to conduct the work because the railings were too short and no ladders were provided on site. "[P]rior to the accident, there was no independent tie off" to prevent the workers from falling off the trucks. He acknowledged that tying off was, in part, a worker's individual decision prior to the accident, and he suggested that on-site enforcement was questionable. Perreault acknowledged that he never saw a Raytheon employee inspect the box lift truck Hathaway was working from on the day of the accident.
The deposition transcript of another worker, Edward Thomas Smith (Smith), was read to the jury. Smith testified that prior to the accident, Hathaway placed a ladder and board across the top of the two box lift trucks to avoid moving the trucks Hathaway and his co-workers were using on the job site. Smith said that he saw Hathaway climb over the truck's railing onto the ladder/board arrangement prior to his fall. 2. Expert Testimony
The jury saw photographs of Erie's dilapidated lift trucks.
Competing expert witnesses testified at trial about Hathaway's medical condition, the extent of his injuries, and the prognosis, including his income potential. The plaintiffs' medical expert, psychologist Robert Jamison, Ph.D. (Dr. Jamison), said that Hathaway had a closed head injury, chronic pain syndrome, and low level depression. Dr. Jamison also believed that Hathaway had reached an end result in treatment for his injuries.
Dana C. Hewins, Ph.D. (Dr. Hewins), the plaintiffs' labor and health care economist, analyzed Hathaway's loss of earning capacity after the accident. Dr. Hewins explained the four-step process he used to determine Hathaway's loss of earning capacity. Dr. Hewins' opinion was based on reviewing Hathaway's wage statements, tax returns, medical opinion letters, former employer documents, union documents (including projected pay raises, health care and fringe benefits charts, and pension and annuity pay projections), and life expectancy charts. Dr. Hewins assumed that Hathaway was and would remain "totally and permanently disabled" for the remainder of his life (i.e., 40 years) based on medical reports from three doctors. Dr. Hewins concluded "to a very high degree of economic certainty that the likelihood that an individual such as Mr. Hathaway ever returning to work is very, very small." Dr. Hewins' total damage assessment was $2,343,000, including past medical bills, future lost wages, and medication costs.
3. The Hathaways' Testimony
At trial, Hathaway and his wife testified but their two children did not. Hathaway testified about his relationship with his wife, how they met, and married. He described how his injuries affected his relationship with his wife and children. Hathaway also testified about his medical treatment following the accident, during the nine years prior to trial, and how his injuries affected his daily life and his ability to work.
Mrs. Hathaway said her husband's injuries had changed him as a husband and father. She said that prior to the accident, Hathaway was an ambitious "go-getter", who wanted to take care of her and the children, and that he did not want her to work. She described the Hathaway family before the accident as close to relatives. Mrs. Hathaway also said that before the accident, her family engaged in activities like snow skiing, diving, and skating, sports which Hathaway had taught their children and his nieces and nephews.
B. The Contract Documents
Over Raytheon's objection, this court determined that the Massport-Raytheon Contract was ambiguous as to responsibility for monitoring safety in four places, presenting an issue of fact for the jury. The jury determined whether Raytheon was responsible for fall protection at the job site. The ambiguous provisions in the Massport-Raytheon Contract were sections 1.5.1 and 1.6.4; and sections 2(B)(5) and 2(B)(6) in the Amended Contract. These sections read:
1.5.1 [Raytheon shall] [s]chedule and conduct weekly job conferences, make regular site visits as necessary and consistent with the progress of the work to observe the progress and quality of the work and to determine if the work is proceeding in accordance with the contract documents and verify that individual work elements are correctly installed before subsequent elements are initiated; keep Authority [Massport] informed on the progress of the work and endeavor to protect the Authority [Massport] against defects and deficiencies in the work; call deficiencies to the attention of Authority [Massport] and contractors in writing and disapprove or reject work failing to conform to the contract documents; write and submit progress report each week reporting findings. . . .
1.6.4 [Raytheon shall] [o]bserve the work to determine conformance with the contract documents and to ascertain the need for correction or rejection of the work, or for uncovering for inspection, or for special testing or inspection.
2(B)(5) [Raytheon's subconsultant shall] [i]nform Consultant's [Raytheon] Resident Engineer of all issues pertaining to health, safety and environmental aspects of the project.
2(B)(6) [Raytheon's subconsultant shall] Communicate all information to Consultant's [Raytheon] Resident Engineer for resolution of issues regarding contractor health safety including, but not limited to, non-compliance, monitoring data, regulatory issues, or other issues requiring response or corrective action by the contractor.
These provisions from the Massport-Raytheon Contract and the Amended Contract left uncertainty as to whether Raytheon was responsible for fall protection at the job site.
DISCUSSION
I. Judgment Notwithstanding the Verdict — Rule 50(b)
A party who has previously moved for a directed verdict and been denied may then move for judgment notwithstanding the verdict "[n]ot later than 10 days after entry of judgment." Mass. R. Civ. P. 50(b). "Judgment notwithstanding the verdict is to be granted cautiously and sparingly." Phelan v. The May Dept. Stores Co., 60 Mass. App. Ct. 843, 844 (2004), citingNetherwood v. American Fedn. of State, County Mun. Employees, Local 1725, 53 Mass. App. Ct. 11, 20 (2001). When deciding a defendant's motion for judgment notwithstanding the verdict, "the judge's task, `taking into account all of the evidence in its aspect most favorable to the plaintiff, [is] to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff.'"DeSantis v. Commonwealth Energy Sys., Civ. No. 06-P-538, (App.Ct. April 26, 2007)(Cypher, J. single justice) citing Totsi v. Ayik, 394 Mass. 482, 494 (1985).
Judgment notwithstanding the verdict should be granted in cases where the reasonable inferences drawn by the jury are not supported by the evidence offered at trial, or if "the judge determines as [sic] matter of law that there was an absence of evidence necessary to make out a cause of action." Phelan, 60 Mass. App. Ct. at 844. Where an "essential element of [the prevailing party's] case rests upon a `mere scintilla' of evidence" judgment notwithstanding the verdict may be warranted. Id., quoting Stapleton v. Macchi, 401 Mass. 725, 728 (1988) (internal citations omitted). The judge may consider uncontroverted evidence favorable to the moving party when deciding a motion for judgment notwithstanding the verdict. See Borden v. Betty Gibson Assoc., Inc., 31 Mass. App. Ct. 51, 54-55 (1991).
A viable negligence claim presupposes that a duty to use reasonable care existed between defendant and plaintiff. Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989). The determination of whether a duty exists is a matter of law to be determined by the trial judge; however, whether a particular defendant owes a duty of care depends on particular circumstances. Id.
An employer owes a duty of care to an independent contractor when the employer has exercised sufficient supervisory control over the project "`unless he exercises his . . . control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.'" Corsetti v. Stone Co., 396 Mass. 1, 10 (1986), quoting Restatement (Second) of Torts § 414. In Corsetti, the Supreme Judicial Court affirmed the trial court's denial of judgment notwithstanding the verdict because there was sufficient evidence for the jury to conclude that the defendant/general contractor, Stone, pursuant to its contract and by its conduct, was responsible for maintaining and supervising "all safety precautions and programs in connection with the Work". Id. at 11. The Supreme Judicial Court concluded that Stone could be liable for the injuries of a subcontractor's employee because it "retained the authority and control necessary to carry out that responsibility" including fall protection within the safety provisions of the contract. Id.
In Parent v. Stone Webster Engr. Corp., the Supreme Judicial Court reversed a summary judgment award to a defendant/general contractor because the company's contract with independent subcontractors obligated it, as project manager, to warn subcontractors' employees of the project's inherent dangers. 408 Mass. 108, 114-115 (1990). Parent, the plaintiff, was a subcontractor's electrician who was injured while testing the voltage on a newly installed electrical distribution panel on the job site. Id. at 109. Parent argued that the general contractor Stone Webster's failure to warn him of the particularly high voltage on the electrical panel contributed to his injuries. Id. Stone Webster argued successfully to the trial judge that it owed no duty to Parent because it performed no work at the site after 1958, presumably when the new panel was installed. Id. at 114. The Supreme Judicial Court disagreed and found that the defendant's responsibilities in "furnish[ing] the necessary engineering and technical direction, design, estimates, cost control, procurement, . . . construction services, labor, materials and equipment to complete [the] project" presented questions of fact about its contractual duties to warn others of the hazards associated with the high voltage panel. Id. at 115.
Raytheon argues that the jury was presented with ample evidence that no duty existed between Raytheon and Hathaway. Raytheon asserts that this case is distinct from Corsetti, because there is no language in either the Massport-Raytheon or Massport-Erie contracts "indicating that Raytheon assumed responsibility for all issues discussed in the contracts it drafted." Instead, Raytheon argues that, unlike Corsetti, where the defendant/general contractor retained "all safety precautions and programs in connection" with the project, the contracts here made Raytheon responsible only for environmental matters relating to the Tobin Bridge painting project. See 396 Mass. at 10. Additionally, Raytheon argues that the Massport-Erie Contract expressly provided that Erie was to "prepare a comprehensive written fall protection plan . . . covering all site operations." Thus, because fall protection was not a specific provision addressed in the Massport-Raytheon Contract, but instead was included in the Massport-Erie Contract, Raytheon argues that, as a matter of law, this court erred in giving this issue of contract ambiguity to the jury.
Hathaway argues that the jury's finding that Raytheon owed him a duty and breached that duty is consistent with both Corsetti and Parent. The Massport-Raytheon Contract and the Amended Contract indicated that although Raytheon was responsible for environmental matters on the job site, Raytheon was also responsible for safety and quality control. For example, section 1.5.1 of the Massport-Raytheon Contract stated that Raytheon was to "[s]chedule and conduct weekly job conferences, make regular site visits as necessary and consistent with the progress of the work to observe the progress and quality of the work and to determine if the work is proceeding in accordance with the contract documents". Raytheon was to report the "progress of the work and endeavor to protect [Massport] against defects and deficiencies in the work; call deficiencies to the attention of Authority and contractors [including Erie] in writing and disapprove or reject work failing to conform to the contract documents". The Amended Contract described Raytheon's supervisory responsibilities by stating that, as resident engineer, it was responsible for reporting to Massport "all issues pertaining to health, safety and environmental aspects of the project" (emphasis supplied).
As Raytheon argued, fall protection was only addressed specifically within the Massport-Erie Contract; on the other hand, as Hathaway argued, the Massport-Raytheon Contract and the Amended Contract placed the responsibility for overall job site safety, health and quality control on Raytheon. An ambiguity existed as to whether Raytheon shared responsibility for fall protection on the job site. The ambiguity, in turn, created an issue of fact for the jury. This resolution is consistent with Corsetti where the Supreme Judicial Court stated that "[w]hether an employer has sufficient control over part of the work of an independent contractor to render him liable under § 414 [of the Restatement (Second) of Torts] is a question of fact for the jury." 396 Mass. at 11. When reading the contract documents as a whole, as it must, this court is persuaded that the court was required to submit the matter to the jury. See Haverhill v. George Brox, Inc., 47 Mass. App. Ct. 717, 720 (1999) (when faced with an ambiguity in a contract, court must determine meaning from intent of parties based on words in question, entire instrument, and circumstances surrounding agreement).
The jury heard the witnesses testify about the job site. This testimony included: (1) Perreault's testimony that he never saw a Raytheon employee inspect the trucks, and that sometimes the workers tied off for safety and other times they did not; (2) Massport employee Gary Cunningham's testimony that Raytheon was responsible for overall safety at the Tobin Bridge site; (3) Raytheon's liability expert, Arnold Haight's, testimony that tying off was an individual worker's responsibility, and that co-defendant, Leighton Associates, was responsible for safety not Raytheon. From this evidence the jury reasonably determined that Raytheon was responsible for fall protection. Raytheon's motion for judgment notwithstanding the verdict must be denied.
II. New Trial — Rule 59(a)
a. The Standard
Pursuant to Mass. R. Civ. P. 59(a), "[a] new trial may be granted to all or any of the parties on all or part of the issues (1) in an action in which there has been a trial by jury, . . . for any of the reasons for which rehearings have heretofore been given." There is no bright line test for granting or denying requests for new trials, but "such motions ought not be granted unless on a survey of the whole case it appears to the judicial conscience and judgment that otherwise a miscarriage of justice will result." Davis v. Boston Elevated Railway, 235 Mass. 482, 496 (1920). It is within the sound discretion of the trial judge to allow or deny a motion for new trial. Id. Newly discovered evidence that "appears to be so grave, material and relevant as to afford a probability that it would be a real factor with the jury reaching a decision" is often viable grounds for allowing a new trial. Id. It is not enough for the defeated party to assert that the outcome should have been different with "smaller matters than appear of significance to an impartial mind." Id. See also Zeitlin v. Zeitlin, 202 Mass. 205, 207 (1910) (even if jury found facts based upon supposed error, reopening cases against public policy unless prevailing party knowingly gave or procured false testimony).
b. Raytheon's Arguments at Trial and Post-Trial
Raytheon offers no new evidence to support an award of a new trial. Instead Raytheon attempts to reargue its case and does not identify an abuse of discretion by the court "so grave, material and relevant as to afford a probability that the new evidence would be a real factor with the jury reaching a decision." Davis, 235 Mass. at 496. Raytheon argues that the jury's verdict was against the weight of the evidence and therefore it is entitled to a new trial.
Raytheon argues that the court committed prejudicial error when it refused to admit evidence of Hathaway's comparative negligence, referring to Hathaway's look at his co-worker Smith before crossing from one truck to another on a board placed on a ladder between the trucks.
The court admitted most of Raytheon's evidence of Hathaway's comparative negligence. The jury heard, through Smith, that cable tie-offs were available but Hathaway did not use them, that Hathaway threw a ladder in between the trucks and put on a board on the ladder, jumped up on the "ladder contraption" and fell. Smith saw him do this. Hathaway came up with the idea to do this and put it together without help, on a day on which this dangerous time-saving measure was unnecessary because there was no rush. This was not a safe practice and was outside the safety policies of Erie. Smith's testimony spanned more than 95 pages. Given the jury's finding that Hathaway was not negligent, Raytheon's argument that evidence of the look would have mattered is weak.
Counsel's argument reflected the court's admission of nearly all of the evidence of comparative negligence when counsel argued that the statement had been admitted in bits and pieces but should be admitted in its entirety.
Raytheon attempted to offer Smith's tape recorded statement to an insurance investigator in which he told the investigator that he and Hathaway exchanged "looks" moments before Hathaway fell. This was relevant because Hathaway's look might have amounted to an assertion that he was engaging in unsafe conduct. This was one small component in a much longer tape recorded statement which the court admitted.
In Raytheon's motion for a new trial, Raytheon makes a different argument than it advanced at trial. During a sidebar conference about the admissibility of the statement, Raytheon's counsel made an offer of proof that, "the jury is entitled to hear [the statement] in its entirety. That's the basis of my objection." (TR. XI, 45). Now, in its motion for a new trial Raytheon argues that the statement is admissible on new grounds, namely that the statement is admissible as a statement against interest. Raytheon may not rely on different grounds than it argued at trial. See Wojcicki v. Caragher, 447 Mass. 200, 215 (2006)("a motion for a new trial should not be granted when the issues raised therein could have been addressed during the trial," citing Com. v. Tucceri, 412 Mass. 401, 406 (1992)). See also Eva-Lee, Inc. v. Thomson Gen. Corp., 5 Mass. App. Ct. 823, 823-824 (1977) (appellants sought reversal of prior judge's denial of appellants' motion for a new trial, the Appeals Court stated, "such a motion (for a new trial) may not be used as a vehicle to compel a judge to rule on questions of law which could have been raised at trial and were not").
The look, or assertion, contained multiple layers of hearsay. The statement was from a tape recorded interview Smith gave on June 4, 1997, about a month after Hathaway's accident. At Smith's trial deposition several years later on November 18, 2004. Smith read the statement as part of his deposition testimony. The parties agreed that the testimony Smith gave at deposition in 2004 would be his trial testimony in lieu of Smith's live testimony under Mass. R. Civ. P. 32(a)(3)(B).
Raytheon concedes that the statement about the look was not admissible as a prior inconsistent statement, but argues instead that the statement should have been admissible as a statement against interest. Raytheon's argument must fail because the prerequisites for admission as a statement against interest were not met. The requirements for admission of a declaration against interest are: 1) the declarant must be unavailable, and 2) the statement must be against the declarant's pecuniary or proprietary interest. Com. v. Carr, 373 Mass. 617, 623 (1986).
Raytheon has made no showing that Smith was unavailable, and has not made a plausible argument regarding how the statement was against Smith's proprietary or pecuniary interests. Smith was not unavailable because the parties deposed him prior to trial and were aware that Smith's deposition was being taken in lieu of Smith testifying at trial. A physically absent witness's testimony is available when a transcript of his or her testimony is available for trial. Ruml v. Ruml, 50 Mass. App. Ct. 500 (2000)(husband's self-imposed exile from jurisdiction during divorce proceedings did not establish unavailability for the introduction of transcripts of his testimony from contempt hearing). Raytheon does not offer any justification to explain how the statement was against the declarant's pecuniary or proprietary interest.
c. The Correct Hearsay Analysis
When there are multiple layers of hearsay an exception to the hearsay rule or a non-hearsay purpose must support a statement's admissibility at each level of hearsay. Custody of Michel, 28 Mass. App. Ct. 260, 265-266 (1990). The first level of hearsay was between Hathaway and Smith when they allegedly exchanged the look moments before Hathaway's accident. The look between Smith and Hathaway was not hearsay because it was an admission of a party opponent. An out of court statement made by a party (Hathaway) may be admitted in evidence against that party. Com. v.Mendes, 441 Mass. 459, 467 (2004). The look could also have been non-hearsay if it were offered not for the truth of the matter asserted, but instead if offered to demonstrate Smith's state of mind, or alternatively to demonstrate that Hathaway knew that what he was doing before the accident was dangerous.
The next level of hearsay was between Smith and the transcriptionist who typed his statement. At this level, the statement could have been excepted from the hearsay rule if classified as past recollection recorded. See Com. v. Nolan, 427 Mass. 541, 543 (1998), citing Com. v.Bookman, 386 Mass. 657, 663-664 (1982). "A memorandum or recording may be admissible under this exception (past recollection recorded) if (1) the witness has no revivable recollection of the subject, (2) the witness had firsthand knowledge of the facts recorded, (3) the witness can testify that the statement was truthful when made, and (4) the recording was made when the events were fresh in [his] memory.Nolan, 427 Mass. at 533.
The tape recording did not introduce an additional level of hearsay. Stated another way, Smith's tape-recorded statements to the insurance investigator which were then transcribed present one layer of hearsay, not two. 29 Am. Jur. 2d Evidence s. 583 ("The argument that sound-recorded evidence is hearsay, because the recording in effect constitutes an unsworn mechanical witness not subject to cross-examination, has been rejected").
While a tape recording can constitute a "memorandum" for purposes of the past recollection recorded exception, the statement about the alleged look could not be admitted into evidence under this exception because other prerequisites for admissibility were not met. Smith never acknowledged that the transcription was the memorandum, nor did he testify that the statement was truthful when made. See id. See alsoNolan, 427 Mass. at 544 (recorded statement taken four days after killing admitted as past recollection recorded when witness testified that what she said in the recording was true to the best of her ability at the time of the recording). There was insufficient evidence presented to support a finding that the events were fresh in Smith's memory, a finding that the court declined, in its discretion, to make. SeeCom. v. Evans, 439 Mass. 184 (2003) (witness's grand jury testimony not admissible as past recollection recorded because there was no evidence that the witness had adopted the minutes when his memory of events was fresh).
The last layer of hearsay is between the transcriptionist and Smith at the trial deposition. This layer is completely unexcused. For this reason Smith's statement about the alleged look was inadmissible and was correctly excluded.
III. Remittitur
Where a damages award is greatly disproportionate to the injury proved, a court has discretion to order a new trial. Bartley v. Phillips, 317 Mass. 35, 41-42 (1944); Egan v. Holderman, 26 Mass. App. Ct. 942, 944 (1988). "[O]nly in rare circumstances" do trial judges determine a jury award is excessive and an abuse of discretion amounting to an error of law. Bresnahan v. Proman, 312 Mass. 97, 101-102 (1942). See also Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 665 (1997) ("Only in rare instances can it be ruled that there has been an abuse of discretion amounting to an error of law.") Sarvis v. Boston Safe Deposit and Trust Co., 47 Mass. App. Ct. 86, 102 (1999); Blake v. Comm'r of Correction, 403 Mass. 764, 771 (1989).
Massachusetts courts give great deference to a jury's assessment of intangibles such as pain and suffering and emotional damage. Borne v.Haverhill Golf Country Club, Inc., 58 Mass. App. Ct. 306, 320 (2003) ("A jury, composed, as they are, of persons from varying walks of life and reflecting a variety of experience, make a particularly suitable institution for assessing . . . emotional damage. . . ."). As long as the jury's assessment of damages was reached honestly and fairly and supported by evidence presented at trial, the damage award will stand. See Egan, 26 Mass. App. Ct. at 944 (request for remittitur denied where evidence supported finding that plaintiff suffered extensive, permanent injuries and was awarded one million dollars); Sarvis, 47 Mass. App. Ct. at 102 (jury's honest and fair damages assessment upheld).
Raytheon argues that Hathaway's damages award was grossly excessive because, at best, the evidence only supported an award of $3,250,000 based on previous and future medical expenses and lost earning capacity. Raytheon asserts that the additional $2,000,000 awarded to Hathaway was awarded "for unknown/unexplained reasons" and must be remitted. Additionally, Raytheon contends that the $2,000,000 award to Mrs. Hathaway was unsupported by the evidence at trial. Raytheon states that Hathaway did not prove he suffered any severe cognitive impairment because Hathaway was hospitalized for only a few days after the accident, and because Hathaway's cognitive testing was normal within six weeks of his accident. Finally, Raytheon asserts that because Hathaway did construction on his home and took extended family vacations within the year he was injured, the damage award is excessive and must be remitted.
Smith, the co-worker, was the first person to reach Hathaway after he fell. Smith testified:
All of the cars [in the roadway below] were starting to screech and lock up their brakes because he (Hathaway) landed right in the . . . one lane was for us to work in and the other lane was for traffic and he fell off that. He went that way towards the traffic side and landed right in the road, and all the cars started locking up their brakes, and then I jumped down and grabbed him from under his arms and dragged him off to the side so he didn't get hit, and put him (Hathaway) on the curb. Then he was-he had like foam coming out of his mouth and he was pulling at his-we had a suit, like a mechanic would wear. . . . [H]e was like delirious, you know, but he was ripping at his clothes . . .
(Tr. X, 110-111).
Hathaway's medical expert testified that since the accident nine years ago, Hathaway has experienced a great deal of pain and will continue to suffer for the rest of his life. The extent of Hathaway's pain and suffering included: daily migraine headaches, repeated physical therapy, several hospitalizations for neurological evaluations, a suicidal gesture, pain management, acupuncture, massage, and chiropractic treatments. At the time of trial, Hathaway's medical records totaled more than 1100 pages, and about 35 medical providers had treated him. Hathaway used an oxygen machine to help him breathe throughout the night; he used a neck tension machine to alleviate neck pain; and he used a TENS unit to treat muscle spasms, in addition to special pillows, a cane, ice and heat packs. Shortly before trial, a neurosurgeon conducted a medical evaluation of Hathaway and concluded that Hathaway suffered from: traumatic brain injury, impaired concentration and memory, depression, myofacial pain syndrome, and temporomandibular joint syndrome.
A Transcutaneous Electrical Nerve Stimulator (TENS) unit is an electronic device that produces electrical signals used to stimulate nerves through unbroken skin. TENS units are commonly used for pain management purposes.
Hathaway's monetary damages totaled $2,343,000. These damages included: past medical bills totaling $224,850; future lost wages to age 65 totaling $1,494,158; and medication costs of approximately $624,000. These figures were compiled and supported in Dr. Hewin's economic evaluation, and Hathaway's doctors' opinions further substantiated these calculations. Hathaway's doctors determined that Hathaway would remain totally and permanently disabled, and that he had no earning potential for the remainder of his working life.
The jury awarded Hathaway an additional $2,000,000 for pain and suffering and $2,000,000 to Mrs. Hathaway for her loss of consortium claim. At trial Mrs. Hathaway testified at length about the impact her husband's accident has had on her and her children's lives. During her testimony she described a "bad day" for her husband as:
"No sleep. Him (Hathaway) tossing and turning all night trying to comfortable. All I see is, ouch, ouch, ouch him still fighting but he doesn't want me to touch him. . . . He (Hathaway) closes himself. He shuts himself off to everybody. It's just get away. And I'm so afraid. I want to help him, but I feel so hopeless."
(Tr. IX, 30-31).
In light of all of the evidence the plaintiffs presented at trial, these awards are not grossly excessive. See Griffin v. General Motors Corp., 380 Mass. 362, 365-366 (1980) (no abuse of discretion where judge let jury award of $1,000,000 stand although plaintiff only proved special damages of $30,000); Egan, 26 Mass. App. Ct. at 944 (no abuse of discretion based on excessive damages where plaintiff awarded $1,000,000 and wife awarded $250,000 for loss of consortium).
The value the jury places on pain and suffering the plaintiff will suffer over a specific duration of his life is entitled to deference. See Griffin, 380 Mass. at 371. In addition to the medical evidence the plaintiffs offered, the "plaintiff's age, life expectancy, present disabilities, education, employment experience, job prospects, and earning capacity" are appropriate considerations for the jury in supporting an award. Pemberton v. Boas, 13 Mass. App. Ct. 1015, 1018 (1982). The jury decides to accept or reject loss of consortium claims for a spouse or a child, and determines the value attributable to such claims. See Diaz v. Eli Lilly Co., 364 Mass. 153, 167 (1973) (a plaintiff's spouse may seek loss of consortium claim for third party's negligence); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 509 (1980) (a child may recover for loss of parental society and companionship stemming from defendant's negligence).
Raytheon's attempts to remit damages by relying on Hathaway's relatively short hospital stay immediately following the accident, that he took family vacations, did construction on his house, and had positive cognitive testing within six weeks of the accident were rejected by the jury. It was for the jury to determine credibility, liability, and to assess damages. This court will not substitute its judgment for that of the jury.
ORDER
The Defendant, Raytheon Constructors and Engineers, Inc.'s, Motions for Judgment Notwithstanding the Verdict, for a New Trial and Remittitur are DENIED .