Opinion
No. 15–P–1644.
10-24-2016
Toni WRIGHT v. REITHOFFER SHOWS, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Toni Wright, appeals from a decision of a judge of the Superior Court denying her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. See Mass.R.Civ .P. 50(b), as amended, 428 Mass. 1402 (1998); Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). Wright asserts that uncorrected deposition errors made by Gary Alberry, who was the designated representative of defendant Reithoffer Shows, Inc. (Reithoffer), substantially interfered with her ability to prepare and present her case. See Mass.R.Civ.P. 30(b)(6), 365 Mass. 780 (1974). We affirm.
Discussion. Wright brought suit against Reithoffer alleging negligence in the latter's operation of a ride at the Brockton Fair in 2010, causing Wright's ankle injury. The jury returned a verdict in favor of Reithoffer, finding that it was negligent, but that its negligence was not a substantial contributing cause of the injury to Wright. Wright subsequently filed her motion, citing glaring errors in Alberry's deposition that were not corrected. See generally Calzaturficio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe Co., 201 F.R.D. 33, 36 (D.Mass.2001) (rule 30 [b][6] imposes “affirmative obligation” on corporate designees to educate themselves about corporate matters). The judge denied the motion, ruling that that the evidence supported the jury's determination that Reithoffer's negligence was not the proximate cause of Wright's injuries.
“We grant considerable deference to a judge's disposition of a motion for a new trial, especially where he was the trial judge, and we will reverse the ruling only for an abuse of discretion.” Gath v. M/A–Com, Inc., 440 Mass. 482, 492 (2003). A judge commits an abuse of discretion when making a clear error of judgment “such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014).
The factors considered when granting a motion for new trial under rule 59(a) may include those considered under rule 60(b)(3); that is fraud, misrepresentation, or other misconduct. See Mass.R.Civ.P. 59(a). See also Mass.R.Civ.P. 60(b)(3), 365 Mass. 828 (1974); Boston Gas Co. v. Century Indem. Co., 754 F.Supp.2d 268, 270–271 (D.Mass.2010), citing Perez–Perez v. Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1st Cir.1993). On appeal we deal solely with a claim of misconduct, not fraud or misrepresentation. Reithoffer failed to correct numerous errors in Alberry's deposition. Indeed, in his deposition, Alberry gave the wrong name for the ride, claimed that it was brand new when it was not, and failed to mention in deposition that the “ride” was meant to be a race obstacle course limited to no more than two people at a time. At trial, he substantially contradicted his deposition testimony.
The judge did not explicitly rule on the argument now made on appeal. Implicit in the judge's ruling, however, is the conclusion that misconduct, if any, by Reithoffer did not substantially interfere with Wright's ability to present her case. See Gaw v. Sappett, 62 Mass.App.Ct. 405, 411 (2004), discussing Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir.1988).
Discovery misconduct was referenced only briefly in Wright's motion, and she has not included her memorandum of law in support of her motion in the record. Both parties have argued the issue on appeal, and no claim has been made that the issue was not properly presented to the judge for disposition.
“Because the Massachusetts Rules of Civil Procedure are patterned after the Federal rules, we interpret our rules consistently with the construction given their Federal counterparts,” Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 800 (1987), “absent compelling reasons to the contrary or significant differences in content.” Rollins Envtl. Serv., Inc. v. Superior Ct., 368 Mass. 174, 179–180 (1975). Although Federal cases have recognized that an unintentional misrepresentation may constitute culpable misconduct within the meaning of rule 60(b)(3), see Anderson, supra, we have reserved the question. See also Gaw, supra; Southwick v. Planning Bd. of Plymouth, 72 Mass.App.Ct. 266, 269 (2008).
Our hesitation in Gaw was based on the fact that the discussion of accidental misconduct in Anderson was dicta. Since Gaw and Southwick, the United States Court of Appeals for the First Circuit has explicitly relied on the discussion of misconduct in Anderson, and held that misconduct is a concept elastic enough to cover ineptitude leading to omissions which deprive a litigant of a fair trial. See West v. Bell Helicopter Textron, Inc., 803 F.3d 56, 69 (1st Cir.2015). See also Anderson, supra (“it takes scant imagination to conjure up discovery responses which, though made in good faith, are so ineptly researched or lackadaisical that they deny the opposing party a fair trial”); Klonoski v. Mahlab, 156 F.3d 255, 274 (1st Cir.1998).
We need not address whether there was misconduct within the meaning of rules 59(b) and 60(b)(3), however, because even if there were, Wright has not shown that the misconduct substantially interfered with the preparation or presentation of her case. See West, supra, citing Anderson, supra at 926. Any errors committed by Alberry were addressed when the relevant information was made available to Wright in the period between deposition and trial. One month after the deposition of Alberry, the bounce house ride was correctly identified by another Reithoffer employee. Reithoffer's answers to interrogatories provided the correct name of the ride roughly eighteen months before trial. Wright also had operation manuals for the bounce house ride, and used them as exhibits during the trial. Since these manuals stated that the maximum number of participants was two, Wright was aware before trial that the ride had been operated in violation of these specifications.
Moreover, Alberry's sloppiness was a major focus of the plaintiff's case at trial. The strategic decision to focus on his lack of preparation, knowledge, and veracity was in part successful, resulting in a plaintiff's verdict on negligence.
If a party harbors concerns about her ability to prepare for trial, the appropriate remedy is “not to seek reversal after an unfavorable verdict but a request for continuance at the time the surprise occurs.” United States Fid. & Guar. Co. v. Baker Material Handling Corp., 62 F.3d 24, 29 (1st Cir.1995), quoting from Sziegla v. General Motors Corp., 728 F.2d 566, 568 (1st Cir .1984). Here, Wright made a valid strategic decision to go forward using the deposition errors to highlight the defendant's lack of care, knowledge, preparedness, and veracity. This strategy in turn forced the company to concede that Alberry told some “whoppers” and to focus on the question of causation. On appeal, Wright now argues that she would have retained an expert, but that argument is belied by her knowledge of the deposition errors, and mooted by the verdict in her favor on the issue of negligence.
Wright had the correct information well before trial and was able to use that information to her strategic advantage. See Ojeda–Toro v. Rivera–Mendez, 853 F.2d 25, 29 (1st Cir.1988) (no relief under rule 60 [b][3] when movant “has access to disputed information or has knowledge of inaccuracies in an opponent's representations at the time of the alleged misconduct”). The deposition errors, even if misconduct, did not substantially interfere with Wright's ability to present her case.
Judgment affirmed.