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15-P-1563                                             Appeals Court

   KRISTEN SULLIVAN, administratrix,1 & another2      vs.    THOMAS
                      CONNOLLY & another.3


                              No. 15-P-1563.

         Suffolk.       December 14, 2016. - February 17, 2017.

             Present:    Grainger, Sullivan, & Kinder, JJ.


Negligence, Medical malpractice, Wrongful death, Spoliation of
     evidence. Wrongful Death. Minor, Wrongful death.
     Practice, Civil, Wrongful death, Instructions to jury,
     Opening statement, New trial, Bias of judge.


     Civil action commenced in the Superior Court Department on
March 18, 2010.

     The case was tried before Linda E. Giles, J., and a motion
for new trial was considered by her.


     Benjamin R. Novotny for the plaintiffs.
     Brooks L. Glahn for the defendants.




     1
         Of the estate of Conleigh Sullivan.
     2
       Glen Sullivan, coadministrator of the estate of Conleigh
Sullivan.
     3
         Debbie Jellyman.
                                                                    2


    GRAINGER, J.   A jury in the Superior Court returned a

defendants' verdict in this medical malpractice suit and

wrongful death action resulting from the death of an infant

within three days of birth.    The plaintiffs appeal, asserting

claims of error in the judge's evidentiary rulings, in her

instructions to the jury and, in a more disturbing allegation,

accusing the judge of persistent favoritism and biased conduct

requiring a new trial.

    After a careful review of both the record appendix and the

trial transcript in their entirety, we affirm the judgment.

Moreover, for the reasons set forth below, we conclude that the

allegations of judicial bias in the plaintiffs' motion for a new

trial are unfounded, and that they exemplify pleading material

appropriate for a motion to strike as set forth in Mass.R.Civ.P.

12(f), 365 Mass. 754 (1974).

    We address the plaintiffs' claims in the order briefed on

appeal, noting that the claims of error are intertwined with the

assertion of judicial bias.    We refer to the factual assertions

of the parties as they relate to the issues; the underlying

facts are generally undisputed.

    Missing witness instruction.     1.   Adverse inference.   A

central issue at trial related to fetal heart rate tracings.

These tracings are electronically monitored to ensure that a

fetus maintains a minimally healthy heart rate before and during
                                                                     3


delivery.   The plaintiffs asserted that the defendants were

negligent by failing to monitor the decedent's tracings with

appropriate care, failing to recognize that the tracings

signaled an unacceptably slow (nonreassuring) heart rate and,

consequently, failing to perform an urgently required cesarean

section in a timely manner.   The defendants asserted that the

tracings indicated a reassuring heart rate, and that a cesarean

section was performed at the appropriate point in time during

delivery when the mother's dilation failed to progress beyond

nine centimeters.

    The original contemporaneous paper records of the fetal

heart rate tracings were unable to be found.    While copies of

the tracings were available and introduced in evidence, these

did not contain any handwritten notations that the defendants

might have made on the original paper strips.    Chart notations

made during delivery and at the time that the cesarean section

was initiated supported the defendants' position that the

cesarean section was performed because the mother's labor had

failed to progress beyond nine centimeters' dilation.

    However, chart notations entered later, by postdelivery

care providers, referred to nonreassuring fetal heart rate

tracings as the reason for the cesarean section.    The defendants

argued that these postdelivery notations either were made on the

basis of unfounded assumptions derived by reasoning in reverse,
                                                                      4


i.e., assuming that the tracings were nonreassuring because the

infant was born in an essentially lifeless state, or were, at

least in part, the result of parroting previous entries based on

such unfounded assumptions.

    The plaintiffs introduced the later chart notations by

postdelivery providers in presenting their case, but did not

call as witnesses any of the postdelivery providers who had made

the notations.   The defendants' motion for a missing witness

instruction was denied.   See Mass. G. Evid. § 1111 (2016).     The

plaintiffs, however, assert on appeal that the judge committed

error in allowing the defendants to argue to the jury that the

plaintiffs presented no evidence that any postdelivery care

providers who recorded chart notations of nonreassuring tracings

had actually examined the records of heart tracings made at the

time of delivery.

    The defendants were fully entitled to direct the jury's

attention to the fact that the entry of the notations in

question was susceptible to more than one interpretation, and to

argue that the inference urged by the plaintiffs was not the

only explanation for their existence.    The judge did not abuse

her discretion; her denial of the defendants' request for a

missing witness instruction was appropriately balanced by her

allowance of the argument.    See Bouley v. Reisman, 38 Mass. App.
                                                                    5


Ct. 118, 121-122 (1995).   There was no error, and no favoritism

shown either party.

     2.   Curative instructions.   The plaintiffs' opening

statement informed the jury that the fetal heart monitor

tracings were missing, and that the two defendants were the last

people known to have had possession of them.4   The judge

interpreted this as a thinly veiled reference to spoliation and

instructed the jury to disregard any mention of allegedly

missing original fetal monitor tracings.5

     The plaintiff argues that the remarks made in their opening

statement were factually accurate and that the delivery of a

curative instruction both after the plaintiffs rested and at the

close of all the evidence constituted prejudicial error.       We

disagree.

     The judge was entitled to guard against deleterious

inferences unsupported by evidence, and her doing so

demonstrates no bias.   See Rolanti v. Boston Edison Corp., 33

Mass. App. Ct. 516, 529 (1992).    There was evidence in the

record that the defendants reviewed the monitor tracing records;

     4
       Counsel stated: "[T]hose original fetal monitor tracings
are missing. The last people we know that had them are the two
defendants in this case. They're nowhere to be found."
(Emphasis supplied.)
     5
       The judge specifically warned the jury: "If you inferred
from that claim by Mr. Novotny of any wrongdoing with regard to
the original fetal monitor tracings by either Nurse Jellyman or
Dr. Connolly, you are to disregard it."
                                                                     6


the record, including deposition testimony relied upon by the

plaintiffs, is simply silent with respect to any subsequent

possession or review of the original records by additional

persons.   The plaintiffs did not seek to call the defendants as

hostile witnesses to inquire on the issue of spoliation, or any

other issue, during the presentation of their case.    There is no

evidence in the record to support the assertion that the

defendants were the last individuals to have had possession of

the records, and no evidence from which an inference of

spoliation, or even carelessness, could properly be inferred.

The fact that the defendants produced copies of the records,

from which both parties and their experts were free to argue the

signification of the viability of the fetus during delivery,

further supports the judge's precautionary instruction and

refutes charges of bias.     There was no error.

    Jury charge.    The plaintiffs contend that the judge's

instructions to the jury did not properly describe the elements

of a wrongful death claim.     Specifically, the plaintiffs assert

the judge instructed the jury that a duty of care was owed only

to the mother, rather than also to the infant.

    The record contradicts the plaintiffs' claim.     The

plaintiffs fail to mention the following portion of the charge:

"The first element the plaintiffs must prove by a preponderance

of the evidence is the standard of medical care that was owed to
                                                                      7


the decedent by the defendant" (emphasis supplied).     The judge

also made it clear that a finding that the defendants failed to

provide the proper standard of care to the mother must be found

to be causally related to the infant's death:     "whether that

negligence caused the decedent's death."

     Motion for a new trial.   A motion for a new trial is within

the trial judge's discretion; "special deference" is accorded

the "motion judge who was also the trial judge."     Commonwealth

v. Grace, 397 Mass. 303, 307 (1986).     The plaintiffs do not

argue that the evidence was insufficient to support the verdict.

As stated, the motion is based solely on the assertion that the

judge's bias and favoritism created prejudice requiring a new

trial.

     A review of the trial transcript provides no support

whatsoever for the conclusion that the judge demonstrated bias,

and reveals no prejudice visited upon the plaintiffs' case.       The

plaintiffs complain that the judge admonished trial counsel for

repetitive and protracted questioning.     This was done at sidebar

and without the jury's knowledge.6


     6
       Aside from the fact that the jury were not exposed to the
judge's entirely appropriate efforts to promote an efficient use
of the courtroom, and aside from the fact that most experienced
trial counsel have been admonished by a judge at some point in
their careers, we view the remarks in question as helpful
criticism rather than prejudicial. The judge cautioned against
insulting "their [the jury's] intelligence" and added, "Unless
you want this jury to blame you and only you for this case not
                                                                      8


    The plaintiffs complain that the judge's bias operated to

allow the defendants to provide expert testimony at trial that

had not been previously disclosed.   This assertion refers in

part to testimony by the defendants themselves.     The plaintiffs

and their counsel were unfairly surprised neither by the fact

that the individuals who were sued for medical malpractice took

the stand, nor that they testified to the adequacy of their own

standard of care.   We perceive no prejudice.

    The plaintiffs also characterize the testimony of a

percipient witness, Nurse Jim Mooney, as undisclosed expert

testimony.   Nurse Mooney was not an undisclosed witness; he was

noted on the hospital records produced in discovery as the

resource nurse in charge on the labor floor, and in attendance

at the delivery of the plaintiffs' child.     Compare Commonwealth

v. Durning, 406 Mass. 485, 496-497 (1990) (disclosure of witness

testifying two to three hours before testimony).     The plaintiffs

did not object to his testifying when he took the stand and

noted that "[w]e let him in as a percipient witness."     The

plaintiffs objected twice during Nurse Mooney's entire

testimony, asserting on both occasions that a question to the

witness solicited inadmissible opinion.     The judge sustained one

objection and overruled the other.   Our review of the record



getting to them until probably next week . . . . Just take it as
a word of advice."
                                                                     9


reveals a balanced approach by the judge.   She allowed testimony

relating to the witness's perceptions and beliefs during the

delivery, while excluding testimony about the hospital's ability

to vary the procedure followed in this case.7   Neither party was

favored by her careful and appropriate distinctions.

     The plaintiffs also claim that a difference of opinion

between their counsel and the judge whether the law entitled the

plaintiffs to peremptory challenges equal in number to those

allowed the defendants was indicative of the judge's bias.     The

claim fails for the obvious reason that, notwithstanding her

view of the law, the judge provided the plaintiffs with the

number to which they claimed a right.8   Another example of the

fallaciousness of the plaintiffs' assertion of favoritism is

their complaint that the judge was critical of plaintiffs'

counsel's performance during a colloquy at which she denied the

defendants' motion for a mistrial to the plaintiffs' benefit.

     In addition to complaining about the judge's substantive

rulings, the motion for a new trial accuses the judge of

displaying "collusion" with defendants' counsel, having

"snickered, sneered, [and] delivered unfair and unbalanced

     7
       The judge allowed the witness to state, "I did not think
she needed an emergency C-section," but excluded testimony about
the hospital's ability to continue monitoring fetal tracings
after a patient had been sterilized and prepped for delivery.
     8
       The defendants agreed with the judge's legal position, but
acquiesced in the resolution of the issue.
                                                                     10


rulings," berating the plaintiffs' attorney and subjecting him

to "unequal treatment."    Conspicuously absent from the record

are any sworn statements from either of the plaintiffs' trial

attorneys.   On the other hand, defendant's counsel filed an

affidavit stating that, although she was present throughout the

trial, she did not see the judge "engage in any of the behavior

described in the plaintiffs' affidavit," noting however that one

of the plaintiffs had to be discreetly admonished during trial

to refrain from the very kind of conduct now attributed by

plaintiffs to the judge.

     The plaintiffs' claims invoke the principle of a fair

trial, and we do not take such claims lightly.    We have examined

the entire trial transcript and record appendix in detail.     At

our request, plaintiffs have cited every record reference on

which they rely.   In addition to the determinations set forth

above, we note that a review of these citations shows that

without exception they are taken from sidebar conferences or

motion hearings; none are in proceedings before the jury.9     For


     9
       Finally, we note that the judge instructed the jury: "You
should not consider anything that I have said or done during the
trial, in ruling on motions or objections, in comments to the
attorneys, in questions to witnesses setting forth the law or in
setting forth the law in these instructions, as any indication
of my opinion as to how you should decide the case. If you
believe that I've expressed or hinted at any opinion about the
facts of this case, please disregard it. Determining the facts
and what the verdict ought to be is solely and exclusively your
duty and responsibility."
                                                                11


the reasons set forth in this opinion, and those set forth in

yet additional detail in the judge's thorough memorandum of

decision denying the plaintiffs' motion for a new trial, we

discern no basis to impugn the judge's conduct, and no error in

her findings.

                                  Judgment affirmed.

                                  Order denying motion for
                                    new trial affirmed.
