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17-P-960                                                Appeals Court

         TIMOTHY LARKIN1   vs.    DEDHAM MEDICAL ASSOCIATES, INC.2


                                 No. 17-P-960.

              Norfolk.      May 4, 2018. - July 31, 2018.

                Present:   Meade, Maldonado, & Shin, JJ.


Medical Malpractice, Damages, Expert opinion, Relief from
     judgment. Negligence, Medical malpractice, Limitation of
     liability. Practice, Civil, Motion to amend, Affirmative
     defense, Waiver, Damages. Evidence, Expert opinion.
     Witness, Expert. Damages, Future damages.



     Civil action commenced in the Superior Court Department on
June 17, 2011.

     The case was tried before Thomas A. Connors, J., and
posttrial motions were heard by him.


     Douglas Howard-Driemeier (Joshua E. Goldstein also present)
for the defendant.
     Adam R. Satin (Benjamin R. Novotny also present) for the
plaintiff.

     1 Individually and as guardian and next friend of Andrea M.
Larkin, and as father and next friend of Alexa Larkin.

     2 Jehane Johnston was also a defendant in the case.
Johnston settled with the plaintiffs, and is not a party to this
appeal.
                                                                    2


     John J. Barter, for Professional Liability Foundation,
Ltd., amicus curiae, submitted a brief.


     MEADE, J.   Following a trial, a jury returned a verdict for

Timothy Larkin, who brought this medical malpractice suit

individually and on behalf of his wife, Andrea Larkin,3 and his

daughter, Alexa Larkin (collectively, plaintiffs, or Larkin).

The jury awarded damages in the sum of $35.4 million, which a

judge of the Superior Court later reduced to approximately $32.5

million on the motion of the defendant, Dedham Medical

Associates (DMA).   On appeal, DMA claims the judge made

erroneous rulings on its posttrial motions.    We affirm.4

     Background.    The unfortunate facts of this case are not

disputed in this appeal.   Andrea, a former elementary school

teacher, exercise class instructor, and marathon runner,

complained of persistent dizziness beginning in 2004.      She

underwent a magnetic resonance imaging procedure at

Massachusetts General Hospital (MGH), which revealed a venous

varix5 in her brain that was determined not to be a cause of her




     3 Because the parties share a surname, we refer to Andrea by
her first name.

     4 We acknowledge the amicus brief filed by the Professional
Liability Foundation, Ltd.

     5 Larkin's expert witness, Dr. Ram V.S. Chavali, testified
that a "venous varix is essentially an aneurysm but on the
venous side," an aneurysm being "[a] weakening and an
                                                                     3


dizziness symptoms.   Her primary care doctor, Jehane Johnston,

an employee of DMA, was copied on the MGH report, but failed to

note the venous varix on Andrea's "problem list," which is

designed to alert a patient's various treating physicians to her

medical conditions.   As a result, when Andrea became pregnant in

2007, her obstetricians were not informed about her venous

abnormality.   Andrea was not informed that this condition posed

a particular risk of the venous varix rupturing during vaginal

labor using the Valsalva maneuver or that an elective Caesarian

section would avoid placing additional stress on the veins in

her head and neck.6   Andrea delivered her daughter vaginally

using the Valsalva maneuver in June of 2008.

     Twelve hours after Andrea delivered her baby, she

experienced a sudden, very painful headache, which accompanied a

rupture of the venous varix in her brain.   After having

emergency surgery to remove a part of her skull and falling into

a month-long coma, Andrea awoke to find that her legs and left

hand were paralyzed, her trunk muscles were impaired, and that

she had difficulty chewing, swallowing, and speaking.      Despite

having physical therapy twice per week, the occasional



enlargement." He further explained that a "[v]arix is a
dilation . . . of a blood vessel."

     6 At trial, Dr. Chavali defined the Valsalva maneuver as
"holding your breath and pushing against that held breath."
                                                                   4


occupational, water, and speech therapies, and a "battery" of

daily medications, Andrea's injuries are permanent.    She

requires care around the clock and likely will for the duration

of her lifetime.

     Larkin filed this suit against DMA and Dr. Johnston.     A

two-week long trial commenced on April 27, 2015.   The jury

rendered a verdict in favor of Larkin and awarded $35.4 million.7

DMA filed a series of posttrial motions for judgment

notwithstanding the verdict, for a new trial and/or remittitur,

to amend the pleadings to conform to the evidence, and to alter

or amend the judgment, challenging the verdict and the jury

award, alleging, among other things, (1) that it was entitled to

the benefit of the statutory limitation on tort liability

afforded to certain charitable organizations pursuant to G. L.

c. 231, § 85K, as then in effect, (2) that testimony provided by

Larkin's expert improperly exceeded the bounds of the parties'

joint pretrial memorandum, (3) that Larkin entered into an

impermissible contingent fee arrangement for consulting

services, and (4) that Larkin's counsel misrepresented the

amount of Andrea's past medical bills, causing an "anchoring"

effect that inflated the jury award.   The judge denied the




     7 Later, Dr. Johnston and the plaintiffs settled for
$4,768,553.50, to which DMA was not a party.
                                                                       5


majority of these motions, but reduced the jury's award in part

to adjust for an error in the calculation of Andrea's past

medical bills.

     Discussion.    1.   General Laws c. 231, § 85K.   DMA first

argues that the judge erred in denying its motion to amend the

pleadings to conform to evidence of its charitable status

pursuant to Mass.R.Civ.P. 15(a) and (b), 365 Mass. 761 (1974).

It also alleges error in the judge's denial of its motion to

alter or amend the judgment pursuant to Mass.R.Civ.P. 59(e), 365

Mass. 827 (1974), to conform to the statutory cap on liability

as provided in G. L. c. 231, § 85K, as then in effect, which

limited the liability of certain charitable organizations to

$20,000.8    For substantially the same reasons listed in the

judge's thoughtful and comprehensive memorandum and order

denying DMA's motions, we disagree.

     a.     Statutory limitation on liability.   The statutory limit

set forth in § 85K is an affirmative defense that must be


     8 General Laws c. 231, § 85K, was amended by St. 2012,
c. 224, § 222, effective November 4, 2012, to increase the cap
for medical malpractice claims against nonprofit organizations
providing health care from $20,000 to $100,000. The $20,000 cap
for other tort claims against charitable organizations that do
not provide health care remained unchanged. Because the 2012
amendment occurred after the plaintiffs filed their 2011
complaint, the relevant potential limit for DMA's liability is
$20,000, which was in effect for all charitable organizations at
that time. See St. 1971, c. 785, § 1. Except as otherwise
noted, we refer to the earlier version as § 85K.
                                                                     6


pleaded and proved by the entity seeking to utilize it.     See

Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 238-239

(2003).   "Although technically a limitation on liability, the

charitable cap set forth in § 85K has been treated as an

affirmative defense that must be pleaded under Mass.R.Civ.P. 8

(c), 365 Mass. 749 (1974) (listing specific affirmative

defenses, and concluding with the residuary clause 'any other

matter constituting an avoidance or affirmative defense')."

Ibid., citing Harlow v. Chin, 405 Mass. 697, 715 (1989).     It is

undisputed that DMA did not plead the statutory cap as an

affirmative defense in its answer.    Therefore, as is the case

with other affirmative defenses, see Anthony's Pier Four, Inc.

v. HBC Assocs., 411 Mass. 451, 471 (1991), DMA waived the

statutory limitation on liability.

    b.    Motion to amend.   Rule 15(a) of the Massachusetts Rules

of Civil Procedure permits a party to amend the pleadings "by

leave of court" "when justice so requires."    Rule 15(b) allows a

party to amend the pleadings to conform to the evidence "[w]hen

issues not raised by the pleadings are tried by express or

implied consent of the parties[.]"    A judge enjoys considerable

discretion in deciding whether to allow or deny a motion to

amend a complaint.   Murphy v. I.S.K.Con. of New England, Inc.,

409 Mass. 842, 864 (1991).   Here, the judge denied DMA's motion

on both rule 15(a) and (b) grounds.
                                                                    7


     With regard to rule 15(a), as the judge stated in his

memorandum and order, DMA "moved to amend its Answer to add the

charitable cap as an affirmative defense after more than four

years of litigation and two weeks of trial."   DMA did not

suggest that "this defense was unavailable to it when the Answer

was filed in 2011, and, aside from inadvertence, [gave no]

reason for the delay."   Such a prolonged delay, the judge found,

caused "manifest" prejudice to the plaintiffs and made amendment

pursuant to rule 15(a) inappropriate.   We agree.   See DiVenuti

v. Reardon, 37 Mass. App. Ct. 73, 77 (1994) ("Among the good

reasons . . . for which a motion to amend may be denied are that

no justification for the lateness of the motion is apparent

[beyond counsel for the moving party having had a late dawning

idea] and that one or more of the nonmoving parties would be

caught off balance by the proffered amendment").9   There was no

abuse of discretion.

     With regard to DMA's rule 15(b) motion to amend the

pleadings to conform to the evidence, the judge found that the

parties did not try the issue of DMA's charitable status by




     9 The prejudice to Larkin included the loss of opportunity
to take pretrial discovery relating to the charitable cap.
Furthermore, had DMA raised the charitable cap in a timely
manner in its answer, Larkin might have decided to settle with
DMA early in the proceeding, rather than incur the costs of
trial.
                                                                      8


either express or implied consent.   Although DMA points to its

pretrial efforts to have Larkin stipulate to its charitable

status, Larkin refused to do so.   Furthermore, Larkin objected

when, on the last day of trial, DMA sought to introduce its

State certificate to prove its charitable status, which was

marked for identification to be kept apart from the jury.       The

plaintiffs objected and reserved their right to argue about

DMA's status.   The plaintiffs' actions reveal that they did not

consent, but rather, that they expressly declined to consent to

try the issue of DMA's status.   Absent such consent, the judge

acted within his discretion to deny DMA's 15(b) motion.

    Additionally, DMA claims that the introduction of its State

certificate constituted prima facie evidence of its charitable

status such that the judge erred in denying its motion.    We

disagree.   The documents DMA sought to introduce were marked for

identification and were not intended for the jury.    "Absent

circumstances or an agreement revealing a different

approach, . . . 'documents marked for identification are not

evidence.'"   Lingis v. Waisbren, 75 Mass. App. Ct. 464, 470

(2009), quoting from Commonwealth v. O'Neil, 51 Mass. App. Ct.

170, 177 n.7 (2001).   Here, the judge did not indicate that he

intended to take a different approach, as was taken in Goldberg

v. Northeastern Univ., 60 Mass. App. Ct. 707, 711-713 (2004), in

which the judge explicitly bifurcated the trial to resolve,
                                                                   9


separately from the jury, whether the statutory cap applied and,

in doing so, marked the university's certificate of

incorporation and articles of organization for identification.

Instead, here, the judge reassured the plaintiffs that they had

reserved their rights as to DMA's (unpleaded) limitation on

liability, and indicated that "[i]f it comes to an issue,

ultimately that's for post-trial jousting."   It was within the

judge's discretion to determine that the issue did not arise

during the course of the proceedings, making any posttrial

"jousting" unnecessary, and to deny DMA's motion.10

     2.   Larkin's expert witness.   DMA next claims that a new

trial is warranted because Larkin's expert, Dr. Chavali,

testified beyond the anticipated testimony contained within the

joint pretrial memorandum.   We disagree.

     Our rules of civil procedure direct parties to disclose the

identity of expert witnesses they plan to call and the "subject

matter on which the expert is expected to testify, and to state

the substance of the facts and opinions to which the expert is


     10Contrary to DMA's assertion, § 85K does not mandate that
the cap be applied whenever a defendant proves its status.
Rather, "[T]he directive refers to the requirement that a
charitable corporation must be engaged in its charitable purpose
to enjoy the benefit of the cap." Keene v. Brigham & Women's
Hosp., Inc., 439 Mass. at 239. Because the judge never
addressed DMA's charitable status, he did not need to reach the
second question, concerning engagement in its charitable
purpose.
                                                                  10


expected to testify and a summary of the grounds for each

opinion."   Mass.R.Civ.P. 26(b)(4)(A)(i), 365 Mass. 772 (1974).

Such disclosures provide notice to the other parties about the

intended use of a party's experts, who are considered key

factual witnesses in medical malpractice cases.   See Kace v.

Liang, 472 Mass. 630, 636-640 (2015).   It is within a judge's

broad discretion to admit or exclude properly disclosed expert

testimony, and, absent prejudicial error, we will not disturb a

judge's exercise of that discretion.    Id. at 637.

    The parties' joint pretrial memorandum indicates that Dr.

Chavali was expected to testify that "the size of a venous varix

can change substantially and that the rupture rate increases

substantially during pregnancy."   The parties also anticipated

Dr. Chavali would testify that "had a Cesarean Section and/or

other alternative treatment . . . been performed or offered to

Ms. Larkin that to a reasonable degree of medical certainty she

would not have suffered an intracranial bleed and the ensuing

catastrophic brain injuries."   In his trial testimony, Dr.

Chavali described his basis for stating that pushing using the

Valsalva maneuver was a cause of Andrea's injuries:   increased

intracranial pressure while pushing prevents blood from exiting,

leading to a rupture of the venous varix.   Later, he stated that

the "venous aneurysm itself may not have ruptured, but [it] was

the back-pressure within it from occlusion that caused this
                                                                   11


rupture.   And that rupture is this hemorrhage that's in the

brain."

     DMA contends that Dr. Chavali testified about causation

theories that went beyond the barebones pretrial disclosure.

Although the pretrial memorandum did not entail the full range

of explanation to which Dr. Chavali testified, what was

disclosed was consistent with and not qualitatively different

from his trial testimony.   In other words, the disclosure was

sufficient to provide DMA with notice that the plaintiffs would

proffer testimony from Dr. Chavali regarding the nature and

causes of the risk of undertaking the Valsalva maneuver in light

of the venous varix in Andrea's brain.   Dr. Chavali's testimony

then provided the jury with a detailed explanation of how such a

risk unfolded in this case, namely, the manner in which

increased pressure from the Valsalva maneuver built up and

caused the venous varix in Andrea's brain to rupture.11

Furthermore, the pretrial memorandum, dated June 2, 2014,

supplied DMA with information regarding Dr. Chavali's intended

testimony at trial almost one year prior to its commencement,




     11Although it does not affect our analysis, we note that,
despite being raised in the pretrial disclosure and discussed at
a sidebar conference, Dr. Chavali did not explain that a
Cesarean section is recommended for women with venous varices.
                                                                     12


ample time during which DMA could have further explored the

matter.

    No prejudice resulted, since the pretrial memorandum

satisfied the goal of the disclosure rule:    "to facilitate the

fair exchange of information about critical witnesses and to

prevent unfair surprise."   Kace v. Liang, 472 Mass. at 636-637.12

Indeed, DMA's own pretrial expert disclosures demonstrate that

DMA was on notice as to Larkin's theory of causation.     DMA knew

of Dr. Chavali's anticipated testimony and specifically retained

multiple experts, including rebuttal testimony that the process

of labor did not cause Andrea's hemorrhage.   Thus, DMA

understood Larkin's causation theory from the disclosure, and

the trial judge, who had broad discretion to decide the matter,

understood as well.   DMA was prepared to and did rebut Dr.

Chavali's testimony at trial.

    3.    Contingency fee arrangement.   DMA also claims that it

is entitled to a new trial because the judge improperly denied


    12 DMA additionally claims that the earlier statements in
Dr. Chavali's testimony contradicted his later statements. The
judge found that DMA, arguing in support of its motion for
judgment notwithstanding the verdict, stripped Dr. Chavali's
later statements from their context within the surrounding
testimony and were not, as DMA contends, contradictory to his
earlier statements regarding causation. We agree. However,
even if Dr. Chavali's statements were contradictory, it is
within the province of the jury to discount or credit an
expert's opinion. See Leibovich v. Antonellis, 410 Mass. 568,
573 (1991), citing Banaghan v. Dewey, 340 Mass. 73, 79 (1959).
                                                                   13


its motion for posttrial discovery regarding the plaintiffs'

expert witness compensation.   It alleges that the plaintiffs

paid a contingency fee to New England Medical Legal Consultants,

Inc. (NEMLC), and that such an arrangement undermines the

integrity of the judicial process.    We disagree.

     While payment of a contingency fee to an expert witness is

prohibited in Massachusetts,13 see New England Tel. & Tel. Co. v.

Board of Assessors of Boston, 392 Mass. 865, 871-872 (1984), no

Massachusetts authority has held the same is true of payments

made to compensate a consulting service, such as the one

retained by the plaintiffs here.     Although not binding on us,

DMA relies on cases from outside our jurisdiction holding that

similar contracts are void as contrary to the established public

policy of those States.   See, e.g., First Natl. Bank of

Springfield v. Malpractice Research, Inc., 179 Ill. 2d 353

(1997).   In contrast, however, such contracts have been upheld

in other jurisdictions.   See, e.g., Schackow v. Medical-Legal

Consulting Serv., Inc., 46 Md. App. 179, 197 (1980) ("All the

experts were to be paid a flat fee by the client.     [The

consultant]'s role was limited to locating potential experts and




     13The judge found that the contract between the plaintiffs
and NEMLC expressly provided that "no payment to any Expert
Witness will be directly or indirectly contingent upon the
outcome of the Client's case."
                                                                    14


then educating them about the case . . . .    That arrangement

does not violate the public policy of Maryland").    No consistent

treatment of consulting contracts emerges from a survey of these

extrajurisdictional cases.

    The rule that expert witnesses may not collect contingent

fees relates to a concern that contingent fees will improperly

induce expert witnesses to provide outcome-oriented testimony.

See Rule 3.4 of the ABA Model Rules of Professional Conduct

(1983) ("A lawyer shall not . . . [b] . . . offer an inducement

to a witness that is prohibited by law"), and comment [3] ("The

common law rule in most jurisdictions is that . . . it is

improper to pay an expert witness a contingent fee").    See also

Mass.R.Prof.C. 3.4(b), (g) & comments 3, 5, 426 Mass. 1389

(1998) (adopting American Bar Association model rule).      Those

same concerns are not directly implicated by the payment of

contingency fees to consulting services to locate medical

experts, where the medical experts are themselves paid flat fees

pro rata based on their time spent preparing for and providing

testimony.   Where no case or rule (in this jurisdiction)

prohibits the practice, we will not upset the judgment on the

basis of how these consultants were paid.    Moreover, DMA points

to nothing in the record that suggests the payment made to NEMLC

had any effect on the independence of the expert witnesses who

testified for the plaintiffs.   Accordingly, we find no abuse of
                                                                   15


discretion in the judge's denial of DMA's motion for new trial

and/or remittitur.

    4.     Past medical expenses.   Finally, DMA claims error in

the judge's reduction of the jury award.     Although the judge

reduced the award for past medical bills upon DMA's motion, DMA

now argues that the plaintiffs' misrepresentation of Andrea's

past medical bills had an "anchoring" effect -- especially in

light of a lack of evidence to support the $11 million award for

future medical expenses -- that influenced the entire jury

award, which the judge should have vacated.    We disagree.

    "Questions concerning inadequate or excessive damages are

initially within the discretion of the trial judge."     Pridgen v.

Boston Hous. Authy., 364 Mass. 696, 715 (1974), citing Bartley

v. Phillips, 317 Mass. 35, 41-44 (1944).     "[A]n award of damages

must stand unless . . . to permit it to stand was an abuse of

discretion on the part of the court below, amounting to an error

of law."   Reckis v. Johnson & Johnson, 471 Mass. 272, 299

(2015), quoting from Labonte v. Hutchins & Wheeler, 424 Mass.

813, 824 (1997).     An error of law occurs "if 'the damages

awarded were greatly disproportionate to the injury proven or

represented a miscarriage of justice.'"     Reckis v. Johnson &

Johnson, supra, quoting from Labonte v. Hutchins & Wheeler,

supra.   Furthermore, damages are considered excessive "when they

are 'so great . . . that it may be reasonably presumed that the
                                                                   16


jury, in assessing them, did not exercise a sound discretion,

but were influenced by passion, partiality, prejudice or

corruption.'"   Reckis v. Johnson & Johnson, supra, quoting from

Bartley v. Phillips, supra at 41.

    Here, the misrepresentation, the occurrence of which is not

in dispute, arose as follows.   Larkin's counsel, in his closing

argument, stated that, considering the $4,000 per week Andrea

paid for her care, a potential award of $8 million would not

"include her four million dollars in medical bills."    DMA did

not object to this statement at the time it was made.    The judge

instructed the jury that attorneys' closing arguments do not

constitute evidence.   After entering their deliberations, the

jury returned with a question that indicated the jury may have

been influenced by the misrepresentation:   "Out of the four

million dollars of medical bills, how much was paid out of

pocket by the Larkin Family?"   In answering the jury's question,

the judge instructed the jury that Larkin is "entitled to be

. . . compensated for those expenses which were reasonable in

amount and which were reasonably necessary."   To make that

determination, the judge explained that "[i]temized medical

hospital bills were admitted as evidence of the fair and

reasonable charges for such services."   Again, neither party

corrected the misrepresentation and DMA did not object to it.
                                                                   17


     The judge determined there was no dispute that, in light of

the evidence introduced, Andrea's past medical bills amounted to

$1,272,013.70, rather than $4 million, the amount referenced in

Larkin's closing argument.14   The award for past medical bills,

as the judge found, "likely resulted from mistaken

representations to the jury by the plaintiffs at trial and, in

any event, . . . lacked a sufficient evidentiary foundation to

avoid reduction."   Accordingly, the judge reduced the award for

past medical expenses to the baseline amount reflected in the

record.15   DMA does not allege that this reduction was an abuse

of discretion.

     DMA claims that, because the plaintiffs introduced limited

evidence as to future medical expenses, the jury may have relied

on the misrepresentation to reach its $11 million award for

anticipated future medical costs.   In arguing a lack of evidence

related to future medical costs, DMA cites to (1) Dr. Chavali's




     14The judge noted in his memorandum and order that Larkin
"attributed the discrepancy to a 'decimal point error,' which
[Larkin] assert[s] was made in good faith."

     15The judge also adjusted the past damages award to include
$14,902.24 of medical expenses that were not submitted at trial.
After adjusting for the misrepresentation and the additional
expense, the judge then reduced the award for past medical
expenses to $401,517.19, accounting for the amount the
plaintiffs had received from private health insurance, pursuant
to G. L. c. 231, § 60G. No argument has been made that this was
improper.
                                                                  18


statement that Andrea's injuries were permanent; (2) Andrea's

father's testimony that her medical costs at the time "roughly"

totaled $4,000 per week; and (3) evidence that Andrea's life

expectancy was another forty-seven years from the time of trial.

DMA claims that this was insufficient evidence on which to base

an award for future damages, and, therefore, that the

misrepresentation "anchored" the jury, leading to an improper

award.    We disagree.

     Although the plaintiffs did not introduce expert witnesses

to prove future medical expenses, DMA points to no case holding

that such evidence is required, and it raises no independent

argument that the damages award should be vacated on this basis.

Cf. Simon v. Solomon, 385 Mass. 91, 105 (1982).   Based on the

testimony that Andrea's medical care costs "roughly $4,000 a

week" and that her injury is permanent -- testimony that the

jury were free to credit -- and that her life expectancy is

another forty-seven years, the jury could have reasonably

calculated that the plaintiffs were entitled to $11 million for

future medical expenses.   This figure could represent an

estimated weekly cost of $4,500,16 totaling $234,000 per year,


     16Although this figure differs from the amount testified to
at trial, a reasonable jury could conclude that $4,500 per week
is an amount "roughly" in the range of $4,000. The jury had
access to the plaintiffs' past medical bills, which they could
have referenced to support their calculations.
                                                                  19


spread over forty-seven years.17   The jury's reasonable

calculation, grounded in the evidence at trial, could have been

made without any reference to Larkin's misrepresentation.     It is

not disproportionate to Andrea's injuries, as it is based in

Andrea's current costs, which are likely to continue in the

future.   Nor does it indicate the jury were "influenced by

passion, partiality, prejudice or corruption."    Reckis v.

Johnson & Johnson, 471 Mass. at 299, quoting from Bartley v.

Phillips, 317 Mass. at 41.   Therefore, the judge neither erred

nor abused his discretion in reducing only the award for past

medical bills.   See Ramos v. Storlazzi, 10 Mass. App. Ct. 876,

877-878 (1980) (finding no abuse of discretion where judge

denied motion for new trial based on misrepresentations that

were admitted into evidence without objection).

                                    Judgment affirmed.

                                    Orders denying postjudgment
                                      motions affirmed.




     17This results in an exact figure of $10,998,000, which the
jury could have rounded up by $2,000, to reach its $11 million
award.
