Opinion
No. 12–P–1501.
2013-06-13
Brian YACINO v. Rosemarie PELOQUIN & another.
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff Brian Yacino was injured when his motorcycle collided with an automobile driven by defendant Rosemarie Peloquin. A jury awarded Yacino $100,000 in damages, which was reduced to reflect the jury's determination that the parties were equally negligent and that defendant Horace Mann Educational Associates, Inc. (Horace Mann), was a charitable organization. The plaintiff appeals from the amended judgment, as well as from the denial of his motion for new trial. We affirm.
1. Closing argument. Relying on Goldstein v. Gontarz, 364 Mass. 800 (1974), Yacino argues that the defendants impermissibly suggested during closing argument that they were uninsured, were underinsured, or would otherwise suffer financial hardship from a verdict against them. This argument fails because it depends entirely on taking isolated words and phrases from the closing out of context. When the challenged words and phrases are read within context (as they must be), see Commonwealth v. Caillot, 454 Mass. 245, 258 (2009), it is clear that they do not implicate the rule prohibiting a defendant from implying that he or she is not protected by insurance. See Goldstein v. Gontarz, supra at 809–810. Instead, they were part of permissible arguments that Yacino had a duty to mitigate damages and regarding Peloquin's emotional demeanor at trial. 2. Occupational nurse's deposition testimony. By agreement, several pages of a witness's deposition testimony were read into evidence at trial. After the deposition was read, Yacino moved to strike the witness's testimony describing a statement made by Yacino as “a lie.” Yacino argues that the testimony should have been stricken because it amounted to an impermissible assessment by one witness of another's credibility. This argument (like the previous one) fails because it is not supported by the record. The questions put to the witness during her deposition were not designed to elicit her assessment of the plaintiff's credibility, but rather were meant to resolve a factual issue regarding what she had said to the plaintiff about the availability of work for him at Intel. Cf. Goldstein v. Katz, 325 Mass. 428, 430 (1950) (where oral statements are at issue, the “occurrence of the conversation and the language therein used [are] properly submitted to the jury as questions of fact”).
Although Yacino also challenges several other aspects of both defendants' closing arguments, he did not object below and those challenges are accordingly waived. See Ciccarelli v. School Dept. of Lowell, 70 Mass.App.Ct. 787, 799 (2007).
The witness was an occupational health nurse at Intel, the plaintiff's employer at the time of the accident.
3. Testimony regarding Yacino's depression. Yacino argues that the judge abused his discretion when he precluded the plaintiff from explaining, on redirect examination, the reasons for his depression. We discern no abuse of discretion. First, Yacino's counsel made no offer of proof; he simply suggested that Yacino would “talk about his underlying facts which would cause his depression to improve.” With “no offer of proof ... there is nothing in the record to show that there was error in excluding the questions.” Commonwealth v. Kleciak, 350 Mass. 679, 693 (1966). Second, the judge's view that Yacino (a lay person) was not competent to testify as to the cause of his medical or psychological issue was well within the zone of his discretion. See Pitts v. Wingate at Brighton, Inc., 82 Mass.App.Ct. 285, 289 (2012) (“Expert testimony is necessary where proof of medical causation lies outside the ken of lay jurors”).
4. Cross-examination of expert. There was also no abuse of discretion in the judge's minor limitation on Yacino's counsel's cross-examination concerning Horace Mann's expert's annual income from litigation. The expert's potential bias was amply explored by Yacino's counsel's other questions about the percentage of the expert's annual income derived from work on legal cases, his hourly rate, the fact that he was retained by defense counsel, and the fact that he received referrals from defense counsel. See Olson v. Ela, 8 Mass.App.Ct. 165, 170 (1979).
5. Jury's assessment of fault and damages. Yacino argues that the jury's assessment of comparative fault was against the weight of the evidence. We disagree. The jury reasonably could have concluded that Yacino operated his motorcycle negligently by accelerating to twenty-five miles per hour in bumper to bumper traffic when other vehicles were traveling only two to five miles per hour.
Yacino also argues that the jury's determination of damages was inadequate as a matter of law because his undisputed medical expenses were $28,000, he did not work for twelve months following the accident (and his annual income had been about $82,670), and the jury could not reasonably decline to compensate him for pain and suffering. Instead of synthesizing Yacino's medical expenses, Yacino's counsel simply provided the jury with copies of the medical records, leaving it to them to do the math. In addition, the jury were entitled to credit Yacino's testimony that he could have returned to work within six months of the accident and, therefore, determine that he was not entitled to lost compensation for the full year. Finally, Yacino's evidence of pain and suffering was far from overwhelming. All considered, the jury's award was reasonable and need not be disturbed. See Moose v. Massachusetts Inst. of Technology, 43 Mass.App.Ct. 420, 427 (1997).
6. Motion for new trial. The plaintiff's motion for new trial raised substantially the same (unavailing) arguments he makes now on appeal. He also argues that the judge abused his discretion in denying the motion because the verdict was against the weight of the evidence. However, in light of the record, the judge's decision to uphold the jury's verdict was not a product of “arbitrary determination, capricious disposition, or whimsical thinking.” W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 748 (1993).
Amended judgment affirmed.
Order denying motion for new trial affirmed.