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13-P-592                                                Appeals Court

                COMMONWEALTH     vs.   DOUGLAS F. GUINAN.


                               No. 13-P-592.

           Berkshire.       April 8, 2014. - October 3, 2014.

              Present:    Berry, Katzmann, & Sullivan, JJ.




Motor Vehicle, Homicide, Operating under the influence, Defect.
     Homicide. Evidence, Expert opinion, Qualification of
     expert witness, Intoxication, Third-party culprit.
     Witness, Expert. Intoxication.



     Indictments found and returned in the Superior Court
Department on February 18, 2011.

    The cases were tried before Daniel A. Ford, J.


     Susan E. Taylor for the defendant.
     John P. Bossé, Assistant District Attorney, for the
Commonwealth.


    SULLIVAN, J.        Douglas F. Guinan appeals from convictions of

motor vehicle homicide while under the influence of alcohol; and

operating a motor vehicle while under the influence of alcohol,

causing serious bodily injury.         See G. L. c. 90, § 24G(a); G. L.
                                                                      2


c. 90, § 24L(1).   He contends that the trial judge abused his

discretion in admitting, over objection, expert testimony ruling

out the computer-assisted power steering mechanism of the

defendant's automobile as a cause of the collision.     We conclude

that the State trooper who offered this opinion lacked the

qualifications to testify regarding the computer system employed

in the operation of the motorized power steering mechanism.

Because the issue of causation was a central issue at trial, the

error was prejudicial.    Accordingly, we reverse.

    Background.    1.    The collision.   On October 23, 2010, while

traveling north on South Street in Pittsfield, a 2011 Hyundai

Sonata operated by the defendant crossed the center line and

struck an oncoming Ford Focus, killing the passenger, Michael

Ashline, and seriously injuring the driver, Nicole Rudd.      The

crash occurred at approximately 5:00 P.M.     The weather and road

conditions were dry, and the percipient and expert witnesses

agreed that the defendant's car was going at the speed of

traffic and within the speed limit.

    Five witnesses who were traveling on South Street at the

time of the collision testified that they observed nothing

unusual before the defendant's car suddenly swerved left and

crossed the center line.    Two other witnesses testified that the

car veered to the right once, then a second time, striking the

curb and causing rubber to peel off the passenger's side tire.
                                                                     3


The car then veered to the left and into oncoming traffic.     The

Commonwealth's accident reconstruction experts did not, however,

observe any damage to or marks on the tires or the whitewalls

consistent with hitting a curb (or anything else) before the

crash.

    There were five cans of beer in the car -- one open twelve-

ounce "Bud Light" beer can with liquid on the lip found on the

floor of the front passenger's side, and four unopened twelve-

ounce "Bud Light" beer cans on the back seat and floor.      The

paramedic and the police officer at the scene detected an odor

of alcohol coming from the defendant.   The defendant's whole

blood alcohol concentration was .06 percent; the judge

instructed the jury that impairment could not be inferred from

that blood alcohol concentration alone, and that they must look

at all of the evidence in the case.

    The defendant was prescribed Vicodin for pain on September

21, 2010, and was scheduled for gall bladder surgery in November

of 2010.   At the time of the collision, one month after

receiving the prescription, he had taken six of the fifteen

pills prescribed.   Blood tests showed the presence of 1.4

micrograms of hydrocodone, the analgesic pain reliever found in

Vicodin, per deciliter of blood.   Both alcohol and hydrocodone

are central nervous system depressants.   According to the

emergency department trauma unit surgeon who treated the
                                                                       4


defendant, hydrocodone and alcohol in combination increase the

effect of one another.

    The surgeon treated the defendant for alcohol withdrawal

because the defendant, unconscious on admission, appeared

disoriented and agitated when he regained consciousness.    Six

days later, the defendant had a magnetic resonance imaging (MRI)

examination.   He then was seen by a neurologist who determined

that the defendant suffered from diffuse axonal injury, a

traumatic brain injury otherwise known as "brain sheer."    The

neurologist and the surgeon testified that the symptoms of brain

sheer are the same as those of alcohol withdrawal, i.e.,

agitation and disorientation, and that brain sheer also causes

short-term memory loss.   Both physicians agreed that the brain

sheer could not have been diagnosed upon admission, and that it

was not evident until the MRI was conducted several days later,

after the defendant's condition had stabilized.   There was no

testimony concerning long-term alcohol abuse or dependency.

    The defendant testified at trial, stating he had no memory

of the collision or of most of the events leading up to it.       He

did recall working with his wife Cheryl to close up their lake

house on the day of the crash.   The defendant could not recall

whether he had taken Vicodin or had drunk beer that day.    Cheryl

testified that she left the lake house at 3:30 P.M., and had not

observed the defendant drink alcohol or take Vicodin while they
                                                                     5


were together.    She saw him drive past her at approximately 4:00

P.M.    She confirmed that, since the collision, the defendant has

suffered from short-term memory loss, and has had issues with

his speech and his judgment.

       2.   The recall notice.   After the collision, Cheryl

received a notice of recall from Hyundai Motor America

(Hyundai), which stated that 2011 Hyundai Sonata vehicles "may

have improperly assembled or loose steering column intermediate

shaft universal joint connections," a defect that, if

uncorrected, "would" cause the driver to "lose the ability to

steer the front wheels," and "may increase the risk of a vehicle

crash."     The recall notice also stated that a Hyundai dealer

"will update the power steering software to ensure that steering

wheel vibration or shaking will not occur as a result of a motor

driven power steering malfunction."      The recall notice further

stated that "manual steering is still operative," and a warning

light "will illuminate indicating that the power steering is not

operating properly."     Cheryl brought the recall notice to the

Pittsfield police.

       3.   Expert testimony.    The role of the power steering in

the collision was contested at trial.       State Trooper Michael

George testified as an expert for the Commonwealth.       Trooper

George attended vocational high school, and worked as an

automobile mechanic and a tow truck driver before becoming a
                                                                        6


dispatcher for the North Attleborough police department.      After

joining the State police, Trooper George received extensive

training and experience as an accident reconstruction

specialist.

     There was no objection to the trooper's testimony as a

mechanical expert or as an accident reconstruction expert.        The

trooper conducted the mechanical inspection outlined in the

recall notice and the accompanying technical service bulletin.1

He opined that there was no mechanical failure in the steering

mechanism, and that the steering system was "properly

installed."

     There was objection, however, to the trooper's testimony

regarding the computer system and the software update.      The

Hyundai Sonata was powered by a computer-assisted, motor-driven

power steering mechanism, not a mechanically operated hydraulic

power steering mechanism.   Because the recall notice was

received after the collision, the software update had not been

performed.    The defendant objected to the testimony of Trooper

George regarding the computer system on the ground that George

had no "foundation for his knowledge" of the system or the

software.    The judge overruled the objection, but directed the



     1
       The inspection was observed by defense counsel and various
experts for Hyundai and the parties to pending personal injury
actions.
                                                                   7


prosecutor to lay additional foundation in the presence of the

jury.

     While the trooper had a background in automobile mechanics,

he did not testify to any training or experience in computer

science, computer software, or computer systems.2   He had

"inspected," but not "worked on" the type of computer-assisted

motorized steering system described in the recall notice.    He

did not examine the software or the computer program, and did

not observe the process for updating the software on any other

vehicle.   He did not display any specific knowledge of how the

software program in the recall notice actually worked.     The

trooper testified that he had conversations with Hyundai

mechanics and had read articles, manuals, and online resources,

including interviews with engineers in peer-reviewed journals,

concerning the motorized power steering system.3


     2
       George was an "Automobile Master Technician," certified by
the National Institute for Automotive Excellence, an
organization he described as "a nationally recognized certifying
body where you have to pass a test on engine performance,
transmissions, brakes, [and] electrical systems."
     3
       Prosecutor: "Have you ever worked on cars or worked on
motor driven power steering in your life?"

     George: "I've never directly worked on them but I have
inspected them. And in this case, to help lay the foundation, I
went to two separate Hyundai dealers before this trial and spoke
with the service managers and shop foreman of both dealerships.
I got information from them on how the system works, directly
from them. I did research online as far as how the electric
power steering system works. There are interviews with
                                                                   8


     Over renewed objection, the trooper then testified at

length regarding the computer software and the relationship

between the motorized power steering and the computer system.

He stated that the motorized power steering provided additional

assistance to the steering mechanism, but could not "take over"

the car.4   He further testified that, based on his discussions

with the mechanics and his research, "the system is built with

numerous fail-safes.    As long as your hand is on the wheel you

can control the car."    He stated that the mechanical system

always remained available to steer the car, and that sensors in

the computer system would "shut down a system if there are any

malfunctions."   The trooper ruled out the motor-driven power

steering as a cause of the crash.

     On cross-examination, however, the trooper acknowledged

that this description was based on what happened when the

computer system was operating properly.   He stated that the

computer program linked to the motor changes the amount of

assistance given to, and torque on, the steering column based on


engineers that developed these systems that talk about the fail-
safe issues with them and how they prevent anything from going
wrong, what happens if something does go wrong. There [is] a
lot of published information out there from known peer-reviewed
sources that I reviewed leading up to this trial."
     4
       Prosecutor: "Let me ask you this: Does the motor-driven
power steering system have the ability to take over control and
steer the car?"

     George:   "No."
                                                                    9


the speed of the car.   He agreed that the motor may react very

quickly and may move with a lot of force when it is directed to

do so by the computer program, which controls both amperage and

voltage.   He also testified that similar motor-driven systems in

other cars can be programmed to provide "park assist," that is,

parking of the car without any assistance by the driver or

manual operation of the steering column.   He reiterated,

however, that this car did not have park assist, and that the

safety features in this vehicle's computer program would turn

the system off if there were an unusual event.

     It also emerged during Trooper George's testimony that

although he inspected the mechanical components of the car in

the first inspection, there was a second inspection where

various people representing the parties in the pending civil and

criminal litigation were present, and representatives of Hyundai

ran a series of computerized diagnostic tests of components of

the car.   On cross-examination Trooper George acknowledged that

he had not seen these software programs before and was unaware

of the results.   He did not make an effort to determine if there

was an event data recorder in the vehicle, and did not inquire

of Hyundai.5   On redirect, he continued to opine that the motor-


     5
       The Pittsfield police were unable to obtain data from the
car's event data recorder because Hyundai would not permit
access to the proprietary software necessary to read the event
data recorder. The record does not disclose exactly who
                                                                      10




driven power steering played no role in the collision.6

     Discussion.    1.   Expert testimony.   A judge "has broad

discretion regarding the admission of expert testimony"; we

review that decision only for an "abuse of discretion."

Commonwealth v. Robinson, 449 Mass. 1, 5 (2007).      "'The crucial

issue,' in determining whether a witness is qualified to give an

expert opinion, 'is whether the witness has sufficient

"education, training, experience and familiarity" with the

subject matter of the testimony.'"    Commonwealth v. Richardson,

423 Mass. 180, 183 (1996), quoting from McLaughlin v. Selectmen

of Amherst, 422 Mass. 359, 361-362 (1996).      See Mass. G. Evid.

§ 702 (2014).    Testimony "'on matters within the witness's field

of expertise is admissible' when the testimony concerns matters

beyond the common knowledge of the jurors and will aid the

jurors in reaching a decision (emphasis supplied). . . .

Consequently, a judge's discretion can be abused when an expert


initiated or was present at the second inspection, whether
Hyundai proprietary software was used in the second inspection,
or whether an event data recorder was examined. Defense counsel
represented to the judge during the hearing on motions in limine
that Hyundai declined to provide the defendant with the codes
necessary to permit his expert to examine the software.
     6
       Prosecutor: "Was there anything that you could observe
about the car, the motor-driven power steering system, that the
failure of that or malfunction in that could have contributed to
the crash that occurred as you described it?"

     George:    "No."
                                                                  11


witness is permitted to testify to matters beyond an area of

expertise or competence."   Commonwealth v. Frangipane, 433 Mass.

527, 533 (2001).

    Trooper George had no training or experience in electronic

power steering, or in the computer software and sensors that

control it.   He had no background in computer science or

software engineering.    While George was qualified to opine as to

the mechanical integrity of the car, and to evaluate the forces

interacting in a collision as an accident reconstruction expert,

he was not qualified to opine regarding the electronic software

update and the operation of the computer-assisted, motor-driven

power steering system.    The witness exceeded the scope of his

expertise.    See ibid. (expert permitted to testify to

dissociative memory loss in child sex abuse victims, but should

not have been permitted to testify to neurological processes

underlying traumatic memory loss).    See also Guinan v. Boston

Elev. Ry., 267 Mass. 526, 528 (1929) (expert who did not have

knowledge of chemical properties, composition, and

inflammability of motion picture film was not qualified to

testify to cause of flash fire).

    We are "particularly concerned" that George's "ultimate

conclusion" as to the cause of the collision "was based on

information that we rely on experts to interpret and which

[George] did not have the qualifications to evaluate."      Peterson
                                                                   12


v. Foley, 77 Mass. App. Ct. 348, 352 (2010) (police officer not

qualified to give expert opinion on speed as cause of motor

vehicle crash where he lacked expertise in accident

reconstruction).    George's lack of familiarity with the software

programs at issue was brought into stark relief by his

testimony, in which he described the recall notice's proposed

repair to the power steering software simply as "basically

hitting update."7

     In the absence of relevant training or experience, the

witness was not able to bring independent judgment to bear on

the information provided by the sources he consulted.     It was

for the expert to evaluate whether "the concerns that prompted

the recall were [accurately] . . . set forth in the recall"

notice, the technical service bulletins, and the online

resources.   Santos v. Chrysler Corp., 430 Mass. 198, 208 (1999).

In view of the fact that the trooper also failed to ascertain

the results of the other diagnostic tests performed in the

second inspection, and had no knowledge of or familiarity with

the software programs at issue, his opinion was at best, adopted




     7
       George previously had testified on direct examination,
"There was nothing that could be done. It was just a matter of
the technician plugging in the computer and sending a different
software program to the module that controls the motor-driven
power steering."
                                                                  13


hearsay, and at worst, "merely an opinion, ipse dixit."

Peterson v. Foley, supra at 354.8

     The Commonwealth urges us to treat this as a case involving

a subspecialty of discrete knowledge to which the trooper, as a

generalist, was permitted to testify.   See Commonwealth v.

Mahoney, 406 Mass. 843, 852-853 (1990).   "A witness's training

and experience may well qualify him to give an opinion in

reference to a problem which he has never before encountered in

precisely the same form."   Commonwealth v. Bellino, 320 Mass.

635, 638 (1947).   See Commonwealth v. Mahoney, supra;

Commonwealth v. Gomes, 459 Mass. 194, 205-206 (2011).     For

example, in Bollmeier v. Ford Motor Co., 130 Ill. App. 2d 844,

848-849 (1970), a master mechanic with extensive experience in

the hydraulic steering mechanisms found in heavy equipment,

trucks, tractors, and cars was permitted to testify to the

failure of the hydraulic steering mechanism in a Ford

Thunderbird, even though he never had worked on a Ford.     The

experts in that case agreed that hydraulic steering mechanisms


     8
       This case stands in stark comparison to those in which an
expert with knowledge of and experience in the subject matter of
his testimony consults with others in formulating an opinion.
For example, in Commonwealth v. Pope, 19 Mass. App. Ct. 627, 628
(1985), a witness with significant training and experience in
the gaming industry consulted with a retired law enforcement
official concerning the analysis of gaming slips. The expert
noted areas of agreement and disagreement based on his own
considerable training and experience, and was found to have
ultimately exercised independent judgment. Id. at 629.
                                                                    14


were substantially the same in all types of vehicles.     Id. at

849.

       This case, by contrast, involves far more than a variation

in form.   There is no evidence in the record that any portion of

George's general training as a mechanic equipped him to evaluate

the ability of a computer software program to direct a motor to

move the steering mechanism, or to determine whether defects

might exist in the computer system or in the software program.

See Commonwealth v. Frangipane, 433 Mass. at 533.9   George lacked

the knowledge and the expertise (whether as a generalist or as a

specialist) to understand and to evaluate the efficacy of the

computer system or its software.   See, e.g., Articulate Sys.,

Inc. v. Apple Computer, Inc., 66 F. Supp. 2d 105, 108-109 (D.

Mass. 1999) (witness without computer science degree or

programming experience lacked necessary qualifications to

       9
       See, e.g., Watson v. Ford Motor Co., 389 S.C. 434, 450-451
(2010) (error to admit expert testimony of software developer
regarding cause of crash where expert had no experience with
cruise control systems). See also Olson v. Ford Motor Co., 411
F. Supp. 2d 1137, 1143-1144 (D. N.D. 2006) (accident
reconstruction expert unqualified to offer opinion as to design
defects in vehicle); Azzano v. O'Malley-Clements, 126 Ohio App.
3d 368, 376 (1998) (accident reconstruction expert not qualified
to offer opinion as to likelihood of bodily symptoms resulting
from collision). Cf. Cansler v. Mills, 765 N.E.2d 698, 703-704
(Ind. App. 2002), overruled on other grounds by Schultz v. Ford
Motor Co., 857 N.E.2d 977 (Ind. App. 2006) (expert testimony of
mechanic as to deployment of air bags properly excluded where
mechanic had no training or experience in air bag systems);
Kitchens v. McKay, 38 Ohio App. 3d 165, 169 (1987) (witness who
lacked education or experience in design defects of forward-
control vehicles barred from testifying as expert).
                                                                    15


testify in patent action); Sennett v. State, 406 S.W.3d 661, 668

(Tex. App. 2013) (witness's credentials insufficient to support

qualification as forensic computer expert).10

     The claim of error was preserved.    The issues at trial were

impairment and causation.   The improperly admitted evidence was

extensive and detailed.   If believed, it foreclosed any argument

that the collision was caused by the computer-assisted, motor-

driven power steering.    Because Trooper George was qualified in

the presence of the jury, inadmissible hearsay regarding his

conversations with Hyundai mechanics, and the opinions of

Hyundai engineers, "about the fail-safe issues with the [power

steering system] and how they prevent anything from going

wrong," was heard by the jury during the direct examination of

the witness.   See Commonwealth v. Greineder, 464 Mass. 580, 601-

602, cert. denied, 134 S. Ct. 166 (2013) (precluding testimony

on direct examination about hearsay underlying expert opinion).11


     10
       Put another way, the Commonwealth's suggestion that
George's research and consultations rendered him an expert in
the area of motor vehicle software programs "ignore[s] the
conceptual distinction between an expert's qualifications and
the reliability of his proffered opinion." Folsom v. Kawasaki
Motors Corp. U.S.A., 509 F. Supp. 2d 1364, 1377 (M.D. Ga. 2007),
quoting from Quiet Technology DC-8, Inc. v. Hurel-Dubois UK
Ltd., 326 F.3d 1333, 1342 (11th Cir. 2003). The former turns on
familiarity with the field, the latter focuses on the bases of
the opinion. Ibid.
     11
       In addition, "Such an offer and finding by the [c]ourt
might influence the jury in [their] evaluation of the expert and
the better procedure is to avoid an acknowledgement of the
                                                                   16


     Finally, the prosecutor forcefully and repeatedly argued in

closing argument that the trooper's testimony regarding

causation put to rest any suggestion that the issues identified

in the recall notice played a role in the crash.12   Because the

testimony went to the heart of the defense that the collision

may have been caused by a malfunction of the computer-assisted

power steering system, it cannot be said that the error in

admitting the testimony "did not influence the jury, or had but

very slight effect."   Commonwealth v. Frangipane, 433 Mass. at

537, quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994).

     The Commonwealth submits that the evidence of impairment

was overwhelming, and that no prejudice may be found.     We

disagree.   The evidence as to impairment was inferential and

conflicting.   The blood alcohol concentration was .06 percent.

The judge told the jury that they could not, from those results,

"draw any inference either way as to whether or not the

defendant was under the influence of alcohol," and that they


witness['s] expertise by the [c]ourt." Commonwealth v.
Frangipane, 433 Mass. at 530 n.4. For this reason, the Supreme
Judicial Court has strongly urged that expert qualification be
undertaken outside the hearing of the jury. Ibid. In this
case, no motion in limine was filed and the challenge to the
expert's qualifications arose during trial.
     12
       "They cannot take over the steering of your car. . . .
They cannot force your vehicle into oncoming traffic. That was
his expert opinion. . . . [H]e told you that there is no way it
could happen. It's impossible."
                                                                   17


must "look to all the evidence in the case."    The jury were

asked to conclude that the defendant had consumed two beers

between 3:30 P.M. and 5:00 P.M., and had taken one or more of

the Vicodin pills that day.    The jury could have so found, but

the circumstantial evidence was far from overwhelming, given the

medical testimony that his postaccident behavior also could be

attributed to brain sheer.    The prejudice associated with the

admission of improper expert testimony was significant.

    The Commonwealth also maintains that the defendant should

not have been permitted to argue that the collision was

attributable to the power steering mechanism because the

defendant was unable to testify to what occurred at the time of

the crash.   Just as the Commonwealth sought to convince the jury

that the precipitous turn into oncoming traffic was the product

of impairment, the defendant was entitled to argue from the

evidence that the assessment of the steering mechanism was

incomplete, and that the software defect identified in the

recall notice caused the crash.    The fact that "certain tests

were not conducted or certain police procedures not followed

. . . could raise a reasonable doubt as to the defendant's guilt

in the minds of the jurors."    Commonwealth v. Lao, 460 Mass. 12,

23 (2011), quoting from Commonwealth v. Bowden, 379 Mass. 472,
                                                                       18


486 (1980).13       See Commonwealth v. Silva-Santiago, 453 Mass. 782,

801-804 (2009).

       2.   Similar circumstances.    In view of our disposition, we

address only those issues likely to recur in the event of a

retrial.14    The defendant maintains that it was error to exclude

the testimony of Tara Winter, who testified in a voir dire

hearing that, while driving her 2011 Hyundai Sonata, the car

took a sudden turn to the left that she initially was unable to

control.     The defendant contends that the testimony was relevant

to show that a third-party culprit, to wit, his car, was

responsible for the collision.       See Commonwealth v. Hoose, 467

Mass. 395, 410 (2014).

       "Trial judges are permitted broad discretion in determining

whether to exclude evidence that a third party committed the

crime."     Ibid.    The parties have not submitted, and we have not

found, a case in which the alleged third-party culprit was a

car.    Rather, the cases focus on the issue of causation.     See,

e.g., Williams v. State, 165 Ga. App. 831, 832 (1983)


       13
       The Commonwealth recognized its obligation at trial,
telling the jury in its opening statement, "Now, during the
investigation of a case like this, the police have a
responsibility to examine all of the evidence and pursue all of
the leads."
       14
       We do not address the defendant's argument that the
admission of the hearsay basis of Trooper George's opinion
violated Crawford v. Washington, 541 U.S. 36, 57 (2004), and
created a substantial risk of miscarriage of justice.
                                                                   19


(mechanical defect in car presented questions of accident and

causation in motor vehicle homicide case).    Nor have we

confronted the question whether evidence of similar

circumstances, e.g., other accidents, is admissible in a

criminal case.15   We need not decide whether these doctrines

apply, however, because even if they did, we conclude, as did

the trial judge, that the evidence was too speculative to

warrant admission.

     Because the right to raise a third-party culprit defense is

one "of constitutional dimension, we review the judge's ruling

independently."    Commonwealth v. Hoose, supra.   Both lines of

cases are concerned with the danger of speculative evidence.

With respect to third-party culprit evidence, nonhearsay is

admissible if it has "a rational tendency to prove the issue the

     15
       The defendant sought admission of evidence of similar
circumstances for substantive purposes based on a third-party
culprit defense, as opposed to a Bowden defense. See
Commonwealth v. Silva-Santiago, supra (discussing distinctions
between third-party culprit defense and Bowden defense). In a
civil case, where the burden of proof is on the plaintiff, the
plaintiff first must produce evidence of a defect before
evidence of other accidents may be admitted for corroboration or
to refute evidence that the car is safe. See Carey v. General
Motors Corp., 377 Mass. 736, 744 (1979); Santos v. Chrysler
Corp., 430 Mass. at 204-205. The Santos formulation does not
apply seamlessly in criminal cases, where the Commonwealth bears
the burden of proof and the defendant has a right to argue that
the burden has not been met. Given our conclusion, however, we
need not decide whether expert testimony regarding the existence
of a defect is a predicate to the admission of evidence of other
accidents in the context of a third-party culprit defense.
Compare Santos v. Chrysler Corp., supra. See generally Kaitz v.
Foreign Motors, Inc., 25 Mass. App. Ct. 198, 201 (1987).
                                                                     20


defense raises, and it is not 'too remote or speculative.'"

Ibid., quoting from Commonwealth v. Bizanowicz, 459 Mass. 400,

418 (2011).   In a civil proceeding, evidence of other accidents

is admissible "if the judge first determines that the jury could

find a substantial similarity in circumstances."     Santos v.

Chrysler Corp., 430 Mass. at 202.     This type of evidence is open

to objection, however, because of the danger of unfairness,

confusion, and speculation.   Ibid.

     Here, Winter testified on voir dire that a salesperson at a

Hyundai dealership told her that a bolt had broken on the car's

steering column, and that the dealership took the car back.      In

this case, the Commonwealth had introduced expert testimony to

show that there was no mechanical defect in the defendant's car.

Although the defendant's offer of proof was that Winter's car

had the mechanical defect described in the recall notice, this

defect was not found in the defendant's car.16    There was,

therefore, a marked difference in the condition of the steering

systems in the two cars, and any link between the two cars was

purely speculative.   The defendant failed to demonstrate a

substantial similarity between his and Winter's vehicles.      The

exclusion of evidence concerning Winter's car was not in error.


     16
       The fact of the recall did not prove the existence of a
defect in either car, but the recall notice placed the
Commonwealth on notice of a possible defect. See Santos v.
Chrysler Corp., supra at 207.
                                                                 21


       Furthermore, the judge did not preclude the third-party

culprit defense.    The recall notice was admitted in evidence and

the defendant argued to the jury that the car was the cause of

the collision.     The judge did not abuse his discretion in

excluding Winter's testimony on the basis of the record before

him.    See Commonwealth v. Hoose, supra.

                                      Judgments reversed.

                                      Verdicts set aside.
