Opinion
18-P-1589
04-23-2020
Kellan P. HUMPHRIES v. Kirkham B. WOOD & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Kellan P. Humphries sued his orthopedic surgeon and the surgeon's former employer (collectively, defendants), claiming negligence in his postoperative care. Following a twelve-day trial, a jury returned a large verdict in Humphries's favor. The defendants appeal from the corrected judgment on the jury verdict and from the denial of motions for postjudgment relief. They argue that they are entitled to a new trial, or in the alternative, to a remittitur based on three erroneous rulings by the trial judge. We affirm.
The judgment on the jury verdict entered on December 27, 2017. A corrected judgment entered on February 9, 2018. The defendants filed their notice of appeal on March 6, 2018. An amended judgment entered on March 27, 2018. It stated that the corrected judgment entered on February 9 was nunc pro tunc to December 2017. The defendants did not file an appeal from the amended judgment.
First, the judge acted within the bounds of his discretion in ordering the completion of the testimony of Humphries's standard of care witness, Dr. David Levin, by means of an audio-visual recording. See Mass. R. Civ. P. 30A (k) (1), as amended, July 11, 2017 ("the court may order, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, that all or part of the testimony ... be presented at trial by audio-visual means").
The scheduling of all the witnesses, including ten busy medical professionals with potentially conflicting schedules, was a complicated undertaking. Before the trial, Humphries's attorney disclosed the narrow window available for Dr. Levin's testimony as well as his inflexibility. When the scheduled day for Dr. Levin's testimony arrived, Dr. Levin took the stand around 9 A.M. and remained on it for the day, completing his direct examination and part of his cross-examination. The defendants' attorney was the only one who knew approximately how long her cross-examination would take. She did not, however, alert the trial judge to any potential time concerns or to the possibility that her cross-examination would not be completed by 1 P.M. No objection was raised until the jurors were released for the day in accordance with the schedule the judge had given them at the beginning of the trial. As the trial judge noted, as a result of this inaction, he was not given the opportunity to attempt to fit in Dr. Levin's entire live testimony by, for example, limiting the direct examination, shortening the morning break, or extending the trial day beyond 1 P.M.
As agreed on pretrial, the trial on that date was scheduled to end at 1 p.m. Dr. Levin's direct examination lasted a little over two hours, and his cross-examination lasted a little over an hour. At the end of the day, the defendants' attorney reported to the judge that she had thirty to forty additional minutes of cross-examination remaining.
The following two trial days were full days in which other expert witnesses with inflexible schedules were slated to testify. In the judge's opinion, because the jury expected a 1 p.m. release time, the "tiring" jury "would likely have experienced increasing resentment and distraction as time approached 2 p.m , particularly knowing that a full day of testimony was in store for Friday." As the defendants' attorney conceded, she did not ask the judge to poll the jury to determine if they were available to stay for an afternoon session.
The judge was not required to alter the trial schedule and to compel Dr. Levin, an out-of-State witness, to return for live testimony at a later date. See Roche v. Massachusetts Bay Transp. Auth., 400 Mass. 217, 220 (1987) ("the purpose [of Rule 30A (k) ] is to facilitate the orderly and timely administration of trials"). No showing of Dr. Levin's unavailability was required under the rule. Id. During the discussions about what procedural course to follow, the defendants' attorney acknowledged that the judge had the authority to order the videotaped testimony.
The judge was warranted in concluding that, in the exigent circumstances with which he was presented, his approach was consistent with the letter and spirit of rule 30A. See Reporters' Notes to Rule 30A, Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 668 (LexisNexis 2019). As required by rule 30A (k) (1), the judge considered the importance of live testimony -- and the fact that the jury had the benefit of it for three hours -- as one factor in his discretionary decision. He also made the required finding under Mass. R. Civ. P. 30A (k) (2), as amended, July 11, 2017, that the introduction of part of Dr. Levin's testimony by audio-visual means (one quarter of his overall testimony) was in the interest of justice at the time, reasoning that it was a fair procedure and did not prejudice the parties.
To the extent that the defendants argue that the judge's order ran afoul of the procedural requirements of rule 30A, they did not properly preserve the substance of their objection. We deem it waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
The defendants challenge the order that the audio-visual testimony be taken at the offices of Humphries's attorney on her recording equipment. Humphries's attorney represented to the judge that the equipment was good to go immediately, and offered to allow the defendants' attorney to "push the button." When the defendants' attorney objected to the lack of an official videographer on the basis that the "rules" required that the video had to be taken by an official "who is not in the employ of anyone," the judge instructed that "somebody other than an employee of Humphries's attorney" record the testimony. A stenographer hired by the defendants eventually served as the operator. The judge drew his authority for this procedure from Mass. R. Civ. P. 30A (b), as amended, July 11, 2017 (notice of taking deposition shall indicate "[i]f the operator is an employee of the attorney choosing the audio-visual recording"). In her memorandum of law in support of a motion for a new trial, the defendants' attorney did not point out the apparent conflict between the rules or develop the argument she now makes. Compare rule 30A (b) with Mass. R. Civ. P. 30A (d), as amended, July 11, 2017 (subjecting operators "to the provisions enumerated in Rule 28 [a]-[c]") and Mass. R. Civ. P. 28 (c), 365 Mass. 779 (1974) ("No deposition shall be taken before a person who is a[n] ... employee or attorney or counsel of any of the parties, or is a[n] ... employee of such attorney or counsel, or is financially interested in the action"). The judge was not put on notice of the argument, and therefore did not address it in his otherwise thorough decision.
Even if the judge's order were improper, we, like the judge, fail to see how the defendants were prejudiced. They have not demonstrated how, exactly, they were harmed by a recording taken by a stenographer they had hired as opposed to an official, certified videographer. See Mass. R. Civ. P. 30A (d), as amended, July 11, 2017 (requiring operator to record witness "in a standard fashion at all times during the deposition"). Nor have they pointed out anything specific about the actual recording that disadvantaged them. Contrast Commonwealth v. Bergstrom, 402 Mass. 534, 548-550 (1988) (presentation of child witness's testimony solely through videotapes of insufficient quality violated defendant's confrontation rights and prevented jury from properly fulfilling their responsibilities). The jury here were given a significant amount of time in which to assess Dr. Levin's credibility on the witness stand. The entire videotape played for the jury lasted less than an hour. The jurors, moreover, were presumed to have followed the judge's instruction to treat the videotape as if it were live testimony. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 451 (2006). The defendants' attorney did not request additional cautionary instructions. To the extent that the defendants argue that the medium had a negative impact on the effectiveness of the cross-examination, it had the same impact on the redirect examination. The judge, furthermore, placed no restrictions on the defendants' questioning of Dr. Levin. Contrast Roche v. Massachusetts Bay Transp. Auth., 400 Mass. at 221-222 (in light of new evidence discovered after videotaped testimony of plaintiff's expert, judge's order quashing defendants' subpoena to expert improperly restricted their right of cross-examination and right to present their case fully); Gossman v. Rosenberg, 237 Mass. 122, 123-124 (1921) (judge's refusal to order plaintiff to answer relevant questions on cross-examination constituted prejudicial error). Given the opportunity to ask questions of Dr. Levin remotely, the jury had none.
The completion of Dr. Levin's testimony (the cross-examination, redirect, and recross-examination) took fifty-four minutes; as required by the rules, the videotape was edited to reflect the judge's rulings on objections.
Finally, the effective cross-examination of the individual defendant, Dr. Kirkham B. Wood, further supported the finding of an absence of prejudice. Humphries's attorney impeached Dr. Wood with several prior inconsistent statements. For example, Dr. Wood testified that only fifteen to twenty percent of his patients undergoing the surgery experienced wound problems, up to and including infection. As he admitted on cross- and recross-examination, studies he authored put the range much higher (twenty-eight to thirty-six percent) and established that his personal complications rate was at the high end of rates reported in the literature.
With no objection raised by his attorney, Dr. Wood testified that wound complications, including infection, remained a concern after the surgery; it was important to him to try to diagnose infection and to keep his infection rate down; one way to do that was to give his patients antibiotics; and patients were "supposed to" receive postoperative antibiotics. Over objection, Dr. Wood further testified that, consistent with his normal practice, all of his patients in the studies routinely received antibiotics for forty-eight hours; and the purpose of the antibiotics was to reduce the risk of infection. Dr. Wood explained that he did not always give his patients antibiotics (just most of the time), and that patients who did not receive antibiotics were excluded from the studies. However, he admitted that his studies did not so state. He also claimed that Humphries, who did not receive the forty-eight hours of postoperative antibiotics, was not at a higher risk of infection because he received antibiotics before and during the operation.
Further, contrary to the defendants' argument, the judge did not permit Humphries's attorney to introduce a new, undisclosed theory of negligence during the cross-examination of Dr. Wood. All parties agreed that wound infection was a known risk of a coccygectomy, requiring surgeons to be vigilant for signs and symptoms of postoperative infection. Humphries's theory of liability, expounded by Dr. Levin, was that Dr. Wood failed to closely monitor Humphries after the surgery, and failed to diagnose and treat his infection in a timely manner. Humphries's attorney was therefore entitled to cross-examine Dr. Wood about his routine practices with respect to postoperative care as described in his own writings. The line of questioning regarding the antibiotics was relevant to the standard of care requiring a surgeon to be on the lookout for the signs of infection postoperatively, as well as the likelihood of postoperative complications in Humphries's case. As the judge pointed out, Humphries's attorney had no duty to disclose to Dr. Wood the topics to be covered in cross-examination.
In any event, we discern no prejudicial error. See Wahlstrom v. JPA IV Mgt. Co., 95 Mass. App. Ct. 445, 448 (2019). In her closing, Humphries's attorney, consistent with the judge's instructions, did not argue that Dr. Wood breached the standard of care by failing to administer antibiotics. Indeed, she candidly stated to the jury that "[n]obody is suggesting that Dr. Wood did something negligent that caused the infection." As the trial judge noted, he took steps to avoid confusion by expressly instructing the jury, as he had mentioned earlier, that there was no claim that Dr. Wood "negligently caused the infection." The jurors were presumed to have followed these instructions. See Carrel v. National Cord & Braid Corp., 447 Mass. at 451.
The single case cited by the defendants in support of their claim of error is distinguishable. See Kace v. Liang, 472 Mass. 630 (2015). In that medical malpractice case, the plaintiff's attorney called the defendant physician as a witness, and examined him about the content of two Internet website pages written by unknown authors. See id. at 641. The court held that the line of questioning, purportedly conducted under the learned treatise exception to the hearsay rule, was improper. See id. at 631, 642. The court reasoned that the plaintiff's attorney could not establish the reliability of the materials, and that the materials were used in the redirect examination of the defendant, who was not testifying as an expert in the case. See id. at 642-646.
Here, in contrast, Dr. Wood was questioned on cross-examination about studies he authored. No question of reliability was at issue. Dr. Wood's statements in his writings were not hearsay, and were admissible as statements of a party opponent. See Commonwealth v. Hobbs, 482 Mass. 538, 558 (2019) ; Mass. G. Evid. § 801(d)(2)(A) (2019).
Nor do we discern an abuse of discretion amounting to an error of law in the judge's decision to allow the jury's future lost earning capacity damages award to stand. See DaPrato v. Massachusetts Water Resources Auth., 482 Mass. 375, 393 (2019). Humphries was fifteen years old at the time of the coccygectomy, and twenty-two by the time of the trial. The jurors were warranted in finding that Humphries sustained permanent nerve and tissue damage with permanent loss of function and pain. They heard testimony that Humphries's plans to go to college were cut short by his injuries. Humphries's neurology expert testified that Humphries's prognosis was "poor" and that he was "looking at a lifelong battle with pain and modifying his life in order to figure out how to live with pain." From this testimony, the jury could reasonably have inferred that Humphries's condition and circumstances limited his potential future employment opportunities. See Reckis v. Johnson & Johnson, 471 Mass. 272, 301 n.45 (2015), cert. denied, 136 S. Ct. 896 (2016).
The jury awarded Humphries $1.5 million for pain and suffering, and $1.25 million for lost earning capacity. The defendants do not challenge the pain and suffering component of the damage award. The lost earning capacity award breaks down to $27,777 per year for forty-five years, the period reasonably found to represent Humphries's likely working life.
Given Humphries's lack of previous employment, the jury appropriately awarded nothing for past and present lost earning capacity. From the amount of the award, the judge could reasonably have rejected the defendants' argument that the jury awarded damages for total disability. In short, this is not one of the "exceedingly rare" situations where we may substitute our judgment for that of the trial judge. Reckis v. Johnson & Johnson, 471 Mass. at 299, quoting Loschi v. Massachusetts Port Auth., 361 Mass. 714, 715 (1972).
Whether the evidence is viewed under the lens of the directed verdict standard or under the weight of the evidence standard, we discern no abuse of discretion or error of law in the denial of the defendants' postjudgment motions. See O'Brien v. Pearson, 449 Mass. 377, 383-384 (2007).
The judge carefully traced the combination of evidence, including Humphries's medical records, the testimony of two expert witnesses and two treating doctors, and of Humphries himself that supported the verdict. We need not repeat that evidence here. As the judge observed, Humphries's treating physicians, who actually examined Humphries solely for medical reasons, provided "particularly powerful" and persuasive testimony, which the defendants' postjudgment motions failed to acknowledge.
In order to succeed on his theory of liability, Humphries was required to prove that he had an infection while he was under Dr. Wood's care. The jury could have made that finding here. Dr. Levin's opinion that Dr. Wood missed the signs and symptoms of an infection at the August 9, 2011 and September 19, 2011 visits was based, not on one individual fact, but on several, including Humphries's persistent pain two months after surgery that increased between these visits, new drainage in a previously well-healed incision, the presence of hypergranulation and red tissue, and exquisite tenderness to palpation. The jury could have found that these facts, as documented by Dr. Wood himself and other medical professionals, were true. The defendants' standard of care expert witness agreed that new wound drainage and "exquisite" tenderness observed at Humphries's August 9, 2011 visit were consistent with an infection. Moreover, according to Dr. Stephen Barr, who eventually diagnosed and surgically treated Humphries's abscess in August 2012, the presence of granulation causing spotting was an early sign of a possible deep infection that was draining.
There also was evidence tying Humphries's pain to an infection. On August 12, 2011, Dr. Stephen Martin, Humphries's primary care physician, diagnosed Humphries with a possible abscess, noting that Humphries's worsening pain was so severe that Dr. Martin was unable to perform a complete examination of the wound site. After a follow-up visit, Dr. Martin's partner was concerned enough about an abscess to order magnetic resonance imaging (MRI), which was done on September 9, 2011. The result, documented by the radiologist, showed a large fluid collection compatible with an abscess.
Humphries's testimony supported the finding that he had intermittent wound drainage after September 2011. To the extent that the defendants seek to challenge Humphries's credibility by pointing to the absence of findings of drainage in the medical records, Dr. Barr, in August 2012, documented Humphries's report of intermittent draining dating back to two to four weeks after his original coccygectomy. Humphries made those statements before he was diagnosed with an abscess or aware of the significance of the drainage. Dr. Barr's surgical findings of sinus tracts from the abscess to the opening in the skin, as well as a collection of fluid smaller than that shown on the September 2011 MRI, were consistent with Humphries's report.
Although the MRI did not diagnose an infection, it did not rule it out. As the judge noted, the jurors were warranted in finding that Dr. Wood did not review the MRI. The negative culture taken by Dr. Wood in September 2011 also did not rule out an infection. The jurors were not required to credit the testimony of the defendants' infectious disease specialist that Humphries's culture did not have a "false negative" test result. See Commonwealth v. Kelly, 470 Mass. 682, 690 (2015). Dr. Barr's testimony and surgical conclusions supported the finding that Humphries had a chronic infection relating back to the surgery performed by Dr. Wood. The defendants offered other explanations for the abscess, but the jurors were not required to believe them.
We note that the defendants' infectious disease expert admitted that a positive culture is not one of the Center for Disease Control's criteria for a surgical site infection.
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In sum, we conclude that the evidence was legally sufficient to support the verdict.
Corrected judgment affirmed.
Order denying motion for judgment notwithstanding the verdict affirmed.
Order denying motion for new trial, or in the alternative, for remittitur affirmed.