Opinion
16–P–528
08-25-2017
Pauline LESLIE & others v. TRAVELERS INSURANCE COMPANY & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On behalf of herself and her two daughters (collectively, plaintiffs), Pauline Leslie brought this personal injury action against the defendants as a result of a motor vehicle accident that occurred on December 22, 2010. On that day, defendant John R. Barrett, who was driving a tractor-trailer owned by codefendant Kingstown Corporation, "rear-ended" Leslie's vehicle. The defendants conceded liability, and the four-day trial proceeded strictly on the issue of the extent of damages suffered. The jury returned a verdict awarding $6,749.29 (including prejudgment interest) to Leslie; $6,414.70 (including prejudgment interest) to Williams, and no damages to Osgood. The plaintiffs' subsequent motion to set aside the jury verdict and for a new trial was denied.
Although three separate judgments entered, we treat them as one judgment.
According to the Superior Court docket sheet, the plaintiffs did not timely appeal the denial of this motion; as a result, it is not part of this appeal.
The plaintiffs now appeal from the December 17, 2015, judgment, arguing several errors: (1) the trial judge abused her discretion in refusing to continue the trial when co-counsel withdrew after jury empanelment; (2) the trial judge wrongfully excluded the plaintiffs' revised medical records; (3) the trial judge wrongfully admitted certain medical records offered by the defendants; and (4) counsel provided ineffective assistance. We affirm.
Continuance. We consider first the plaintiffs' claim that the judge abused her discretion in denying their motion for a continuance and "forcing" them to trial without adequate assistance of counsel. After jury empanelment, "lead counsel's" renewed motion to withdraw was allowed due to what he described as an ethical conflict. The judge then stated her intention to dismiss the case for want of prosecution if the plaintiffs did not go forward without him. The plaintiffs did not object to the judge's decision at that time. Because they raise this issue for the first time on appeal, the argument is waived. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).
The attorney had filed a motion to withdraw the previous week, but withdrew it after speaking with Leslie. At the time of his renewed motion, he informed the judge that he had played no role in the preparation of the trial exhibits, which documents he claimed were at the root of the issue that "raised an ethical dilemma for [him]"; he had contacted an attorney specializing in ethical matters and had been advised to withdraw immediately as counsel.
Nonetheless, we are satisfied that it was not an abuse of discretion for the judge to require the plaintiffs to go forward with their two remaining attorneys, who had been counsel of record from the beginning of the case and who also had been actively involved throughout discovery and pretrial proceedings. The judge concluded that, because Leslie's behavior had triggered the ethical issue that prompted the attorney's withdrawal, she should not be rewarded with a continuance.
In addition, witnesses for both the plaintiffs and the defendants were present, and the defendants were ready to proceed; the jurors were empaneled and waiting to hear evidence; and the defendants objected to a continuance, agreeing with the judge that they would move to dismiss the case for want of prosecution. Finally, the plaintiffs failed to articulate at the time any legitimate reason why a continuance should have been granted, given that Leslie "contributed to [her] own disability and the judge could take that into consideration." Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984).
In support of the motion for a continuance, one of the two remaining attorneys argued that the documents to be admitted as exhibits were missing certain records and that she had only recently come back to working on this case after a period of absence; the second attorney argued that other documents had not been sufficiently redacted. The second attorney added that the two attorneys had been "up last night all night ... until 5:30" gathering all of Leslie's medical records into binders and had redacted the documents but did not have time to make copies. The judge found that these excuses did not justify allowing the motion for a continuance.
In regard to the denial of the defendants' motion for a continuance, "[w]e review the judge's [action] ... to see whether there has been abuse of discretion." Botsaris v. Botsaris, 26 Mass. App. Ct. 254, 256 (1988). "Whether a case shall be continued or proceed to trial is within the sound discretion of the judge."Beninati, supra, citing Nobel v. Mead–Morrison Mfg. Co., 237 Mass. 5, 16 (1921). Under all of the circumstances here, even if the issue were not waived, we are satisfied that the judge did not abuse her discretion in denying the motion for a continuance. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Medical records. The plaintiffs next argue that the judge erred in excluding certain of Leslie's medical records that had been amended shortly before trial, and in admitting records submitted by the defendants that did not comply with G.L.c. 233, § 79G. These arguments are without merit.
"We review a trial judge's evidentiary decisions under an abuse of discretion standard." N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013). In applying this standard, we look to determine whether "the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L., supra (citation omitted).
First, the plaintiffs argue that the judge erred in excluding two medical records that they properly offered pursuant to G.L.c. 223, § 79G, as, they contend, it was the defendants' burden to rebut these authenticated records. We disagree. The records that the plaintiffs offered had been amended recently by the respective providers, at Leslie's request, by attaching addenda containing information favorable to her case three to five years after the original records were generated. Notably, these addenda were made by an employee at each provider, not the original drafter, and served upon the defendants shortly before trial. With this in mind, the judge reasonably could have found that the evidence was not reliable, particularly because the revisions were made several years after the original reports were generated, for the purpose of trial, and by unknown persons who had not personally treated Leslie. See Commonwealth v. Evans, 438 Mass. 142, 155 (2002). We see no abuse of discretion.
General Laws c. 233, § 79G, is an exception to the hearsay rule, allowing the admissibility of only those portions of medical records relating to treatment and medical history "to establish the reasonable value of services rendered where the services are related to the injury for which the claim is made." Law v. Griffith, 457 Mass. 349, 353 (2010). These records are included "under an expansion of the business records exception, as ‘the safeguards of trustworthiness of records of the modern hospital are at least as substantial as the guarantees of reliability of records of business establishments generally.’ " O'Malley v. Soske, 76 Mass. App. Ct. 495, 497–498 (2010), quoting from 2 McCormick, Evidence § 293, at 319–320 (6th ed. 2006). See Mass. G. Evid. § 803(6)(B) (2017).
One of the excluded medical records was an ambulance report generated by PRO EMS, the ambulance service that responded to the scene on the day of the accident, with an attached "ADDEND[UM]" dated October 12, 2015. The second was generated by Sports Medicine North, originally authored and signed on August 2, 2012, by Dr. Fehnel, who had treated Leslie in 2012; on October 6, 2015, an "Addendum" was added regarding Leslie's prescribed restrictions.
Next, the plaintiffs' argument that the defendants' documents were erroneously admitted pursuant to § 79G is also without merit. On November 18, 2015, almost one month prior to trial, the defendants notified the plaintiffs, by certified mail, that they would be offering in evidence certain medical records of Leslie ; at trial the judge acknowledged that the defendants' notice letter, including the return receipt, was in the court's file. Because the defendants' submission complied with the statutory safeguards provided in § 79G, the judge did not err in admitting the records in evidence. See G.L.c. 233, § 79G ; Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 798, 799–800 (2001).
Medical records from Lynn Dental Health, MRI Centers of New England—Peabody, Sports Medicine North, and PRO EMS.
Ineffective assistance. Finally, for the first time on appeal, the plaintiffs claim ineffective assistance of counsel, arguing that their two remaining counsel were forced to proceed unprepared; they also contend that, upon instruction by defense counsel, one of their trial counsel inappropriately redacted relevant information, to Leslie's detriment, from the certified medical records. "A claim of ineffective assistance of counsel is a well-established ground for a collateral attack on a decision in a criminal case. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.3 (1994). Such a claim is not a basis for a collateral attack on a civil judgment, where a litigant's sole recourse for his attorney's negligence is an action for malpractice. See Bell v. Eastman Kodak Co., 214 F.3d 798, 802 (7th Cir. 2000). As a general rule, there is no right to the effective assistance of counsel in civil cases. See, e.g., Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 840 (7th Cir. 1999), and cases cited." Commonwealth v. Patton, 458 Mass. 119, 124 (2010). ,
To the extent that we do not address the parties' other contentions, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
The defendants' motion to strike the brief and appendix submitted by the plaintiffs is denied, as we did not consider any materials, or references thereto, that were not part of the trial record.
Judgment affirmed.