Gardner et al v. Simpson Financing Ltd. Partnership et al
Filing
176
Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered. Defendant's 167 motion for judgment as a matter of law, or, in the alternative, for a new trial as to liability will be DENIED. Defendant's motion for a new trial or remittitur as to emotional distress damages will be GRANTED; plaintiffs shall inform the court by August 29, 2013, whether they seek a new trial. If not, judgment shall enter in the amount of $100,000 in emotional distress damages as to each plaintiff, plus their already determined damages as to loss of property and pre-judgment interest.(Cicolini, Pietro)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
GAYLE GARDNER, TANYA PULISCIANO, )
CRYSTAL CAISSIE, and LOUISE FELTEAU, )
)
Plaintiffs,
)
)
v.
)
)
SIMPSON FINANCING LIMITED
)
PARTNERSHIP,
)
)
Defendant.
)
__________________________________________)
Civil Action Nos.
09-11806-FDS
MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL
SAYLOR, J.
In May 2008, the apartment building in which plaintiffs lived was destroyed by fire.
Plaintiffs Gayle Gardner, Tanya Pulisciano, Crystal Caissie, and Louise Felteau brought an
action for negligence against defendant Simpson Financing Limited Partnership, the entity that
owned and operated the apartment complex. The case was tried to a jury in April 2013; the jury
found that Simpson was negligent in maintaining the premises and awarded each plaintiff
compensatory damages for loss of property and emotional distress.1
Pending before the Court is Simpson’s motion for judgment as a matter of law, or, in the
alternative, a remittitur or new trial. For the reasons set forth below, the motion will be granted
in part and denied in part.
1
Plaintiffs Iocco and Varnes voluntarily dismissed their claims in the early stages of the trial, apparently
having reached settlements with Simpson.
I.
Procedural Background
Plaintiffs brought separate actions in the Massachusetts Housing Court, Northeast
Division, against Simpson, as well as First American Property & Casualty Insurance Company
and Multifamily Community Insurance Agency, Inc., alleging negligence, negligent infliction of
emotional distress, intentional and negligent misrepresentation, breach of contract, breach of the
covenant of quiet enjoyment, nuisance, and violation of Mass. Gen. Laws ch. 93A. On October
26, 2009, defendants removed the actions to this Court on the basis of diversity of citizenship.
The actions were then consolidated.
On March 30, 2012, this Court granted summary judgment in favor of the insurance
company defendants. The Court also granted partial summary judgment in favor of Simpson
with only the claims for negligence, negligent infliction of emotional distress, and breach of the
covenant of quiet enjoyment surviving.
A jury trial was held from April 1 through April 5, 2013. The evidence at trial consisted
of, among other things, testimony from the plaintiffs, employees of Simpson, and representatives
of the Peabody Fire Department. The testimony indicated that there had been multiple fires in
the landscaping mulch at the apartment complex prior to the one that burned down plaintiffs’
building. During the testimony of Peabody Fire Inspector Joseph DiFranco, Peabody Fire
Department reports were offered into evidence that described the department’s response to
mulch fires at the Highlands at Dearborn on May 19, 21, and 25, 2008. (See Tr. Day 2 at 69, 7576, 78-79). Inspector DiFranco also testified that he suggested to Simpson employees that they
could address the fire risk by pulling the mulch away from the buildings, as well as better
controlling the disposal of cigarette butts. (Id. at 73, 81). Andrew Filippone, who was employed
2
by Simpson as the maintenance supervisor for the Highlands at Dearborn, testified that while he
was at the scene of one of the smaller mulch fires on the property, someone from the Peabody
Fire Department “recommended bringing the mulch back away from the building a little bit.”
(Id. at 56). He further testified that he passed this recommendation on to Simpson property
manager Victoria Jackman and that the mulch was never in fact pulled away from the buildings
before the fire that destroyed Building 8 on May 29, 2008. (Id. at 57).
Also in evidence were two notices, one from the Peabody Fire Department and one
issued by the property manager. The notice from the fire department, which was dated May 27,
2008, acknowledged the repeated mulch fires and instructed the property manager to address
improper disposal of cigarette butts and matches; it did not, however, mention moving the mulch
away from the buildings. (Id. at 82). The notice issued by the property manager was dated
March 29, 2008, months before the mulch fires occurred, and asked residents not to throw
cigarette butts on the ground. (Id. at 30; Tr. Day 4 at 80). There was no evidence of any other
notices having been issued to residents prior to the May 29 fire.
Victoria Jackman testified that the mulch was pulled back from the buildings some time
after the May 29 fire. (Tr. Day 4 at 110). Jackman gave this testimony in response to questions
from plaintiffs’ counsel on cross-examination. Because the Court did not immediately realize
that the question sought to elicit testimony as to subsequent remedial measures, it overruled a
defense objection to the question, but then gave an immediate curative instruction after it heard
the answer. The exchange transpired as follows:
MR. D’ANGELO:
. . . what I’d like to ask you is, at some point a decision was
made to pull the bark mulch back. Do you recall when that
was?
3
MR. SELIGSON:
Objection.
THE COURT:
Overruled.
MS. JACKMAN:
A decision was made to pull the mulch back, and it was
actually recommended by -
MR. D’ANGELO:
That’s not my question, I’m sorry, I just want to know
when.
MS. JACKMAN:
Oh, it was following the fire.
MR. D’ANGELO:
Do you know was it the next day, a week, a month?
MS. JACKMAN:
I don’t recall specifically. It was early.
THE COURT:
Let me caution the jury. Obviously everyone is encouraged to
make things safer after something has happened, and you cannot
use evidence that something was done after the fact to make
something safer as proof it wasn’t safe before the incident
happened. We expect and want everyone to learn from incidents
and to improve things as time goes on.
(Id.) (emphasis added).
David Homan, a regional manager at Simpson, was the next witness. He testified on
direct—in response to a question by defense counsel—that the mulch was pulled back from the
buildings a few days after the fire, in consultation with the fire department. (Id. at 133).2
2
Defense counsel then objected when plaintiffs’ counsel brought up the subject again on crossexamination. The Court held a sidebar conference that proceeded as follows:
THE COURT:
I don’t understand why we’re talking about subsequent remedial measures.
I don’t understand why you [defense counsel] introduced it. It’s prohibited
by Rule 407, but you opened the door about pulling the mulch away.
What’s the objection as to this?
MR. SELIGSON:
Well, your Honor, the reason I introduced it is because the entire time the
suggestion has been that they said pull the mulch back. Simpson’s
response –
THE COURT:
Before May 29th?
MR. SELIGSON:
Correct. Simpson’s response is after the fire, it was then they said maybe
4
Plaintiffs also testified in support of their case. They each provided a list of items lost in
the fire and attributed values to those items; those lists were admitted into evidence without
objection. (See Tr. Day 3 at 5-6; see, e.g.,id. at 32-38). They also testified extensively about the
mental and physical effects of the fire on their persons. (See, e.g., id. at 42-50). They each
testified that they saw Building 8, which was the building wherein their apartments were located,
burning from Route 1, the entrance to the apartment complex, and/or a nearby parking lot. (See
id. at 21, 65-66, 79-80; Tr. Day 4 at 26-27). Plaintiffs Caissie, Gardner, and Felteau all testified
about the loss of their pets in the fire. (See Tr. Day 3 at 79-84, 29, 37-38; Tr. Day 4 at 26-27).3
we should pull the mulch back, so that’s what that testimony is for, even
though it’s not germane, it’s more rehabilitating my client in the eyes of the
jury that they didn’t receive that information and ignore it. If this is coming
in to impeach it, it doesn’t come in as evidence, it would come in as an
impeachment purpose. It’s clear hearsay.
THE COURT:
Mr. D’Angelo[?]
MR. D’ANGELO:
He opened the door, your Honor.
THE COURT:
He opened the door to an extent.
(Tr. Day 4 at 138). After further dialogue, in which the Court excluded a proposed plaintiffs’ exhibit, the Court
ruled that “You may impeach him on the subject of when the mulch was pulled away from the apartment because it
was elicited [by the defense] . . .” (Id. At 140-41). Plaintiffs’ counsel then asked:
MR. D’ANGELO:
Mr. Homan, are you absolutely sure that you pulled the mulch away a
couple days after the fire?
MR. HOMAN:
Yes, it would have been within that first week.
3
Pursuant to Massachusetts law, the Court gave the following instruction to the jury about the loss of pets:
Under the law of Massachusetts, animals, including pets, are considered personal property.
Therefore, in determining the damages, if any, to be awarded to a plaintiff for the death of a
pet, your award should be based on the same considerations for determining the value of
any other item of personal property. In other words, your award should reflect the “fair
market value” of the pet at the time of the loss.
Of course, people do not typically think of their pets as mere “personal property.” And a
pet may not have a readily ascertainable market value. Nonetheless, the law requires you to
treat a pet as property, and does not permit you to include in your award compensation for
any mental anguish, or loss of companionship, that occurred solely as a result of the death
5
Defendant moved for a directed verdict, which the Court denied. The jury then found in
favor of plaintiffs on all counts and awarded compensatory damages for loss of property to
plaintiff Gardner in the amount $74,128.00; to plaintiff Pulisciano in the amount of $41,355.57;
to plaintiff Caissie in the amount of $47,331.43; and to plaintiff Felteau in the amount of
$188,992.02. The jury also awarded emotional distress damages to each plaintiff in the amount
of $450,000. Defendant has moved for an order of judgment as a matter of law, or in the
alternative, for an order of remittitur or new trial.
II.
Standard of Review
Judgment as a matter of law may be granted when the evidence, considered in the light
most hospitable to the verdict, “is so one-sided that [the moving party] is plainly entitled to
judgment, for reasonable minds could not differ as to the outcome.” Colasanto v. Life Ins. Co. of
N. Am., 100 F.3d 203, 208 (1st Cir. 1996) (citation omitted); accord Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 149-51 (2000); Zimmerman v. Direct Fed. Credit Union,
262 F.3d 70, 75 (1st Cir. 2001) (“[T]he jury’s verdict must stand unless the evidence, taken in
the light most favorable to the prevailing party, points unerringly to an opposite conclusion.”).
Similarly, a court may grant a new trial when “the outcome is against the clear weight of
the evidence such that upholding the verdict will result in a miscarriage of justice.” Goulet v.
New Penn Motor Express, Inc., 512 F.3d 34, 44 (1st Cir. 2008) (quoting Ramos v. Davis & Geck,
Inc., 167 F.3d 727, 731 (1st Cir. 1999)); see also Sheek v. Asia Badger, Inc., 235 F.3d 687, 700
(1st Cir. 2000) (“We will uphold the jury’s verdict unless the evidence points ‘to one conclusion
of the pet.
(Tr. Day 5 at 45).
6
and one conclusion only: that the losing party was entitled to win.’” (citations omitted)). “[A]
trial judge may order a new trial ‘even where the verdict is supported by substantial evidence.’”
Jennings v. Jones, 587 F.3d 430, 439 (1st Cir. 2009) (quoting Lama v. Borras, 16 F.3d 473, 477
(1st Cir. 1994)).
As an alternative to ordering a new trial, a court may order a remittitur of damages in
certain rare circumstances. The First Circuit has held that a district court is “obligated . . . to
grant a remittitur or a new trial on damages only when the award ‘exceeds any rational appraisal
or estimate of the damages that could be based upon the evidence before it.’” Eastern Mountain
Platform Tennis, Inc. v. Sherwin-Williams Company, Inc., 40 F.3d 492, 502 (1st Cir. 1994)
(quoting Milone v. Moceri Family, Inc., 847 F.2d 35, 36 (1st Cir. 1988)); see also Anthony v.
G.M.D. Airline Services, Inc., 17 F.3d 490, 493 (1st Cir. 1994) (applying the same standard).
Courts have interpreted this standard to hold that a damages award must stand unless it is
“grossly excessive, inordinate, shocking to the conscience of the court, or so high that it would
be a denial of justice to permit it to stand.” Correa v. Hosp. San Francisco, 69 F.3d 1184, 1197
(1st Cir. 1995); see also Sony BMG Music Entm't v. Tenenbaum, 2012 U.S. Dist. LEXIS 119243
(D. Mass. Aug. 23, 2012). When a remittitur is warranted, the plaintiff is given the option of
either accepting the remitted damages figure, which is determined by the court to be the
maximum amount that could have been awarded based upon the evidence presented at trial, or
moving forward with a new trial. See Mejias-Quiros v. Maxxam Property Corp., 108 F.3d 425,
428 (1st Cir. 1997); Marchant v. Dayton Tire & Rubber Co., 836 F.2d 695, 704 (1st Cir. 1988).
7
III.
Analysis
A.
Judgment as a Matter of Law
1.
Negligence and Breach of Implied Covenant of Quiet Enjoyment
As to the claims for negligence, the Court instructed the jury that the plaintiffs had to
prove four separate elements: (1) that defendant owed a duty of care to them; (2)
that Simpson breached that duty; (3) that the plaintiffs each suffered injuries; and (4) that
Simpson’s breach of duty was a cause of the injuries. (Tr. Day 5 at 38). The jury was also told
that it had to decide “whether Simpson exercised the degree of care that a reasonable landlord
(that is, a landlord of ordinary caution and prudence) would have exercised under similar
circumstances.” (Id. at 37-38).
As to the claims for breach of the implied covenant of quiet enjoyment, the Court
instructed the jury that the plaintiffs had to prove three separate elements: (1) that defendant
leased the premises to them; (2) that acts or omissions of Simpson caused the premises to be
substantially unsuitable for use; and (3) that defendant knew, or reasonably should have known,
that its acts or omissions were likely to cause the premises to be substantially unsuitable for use.
(Id. at 41). The first element was undisputed at trial. As to the second element, the Court
instructed the jury that “[t]he meaning of ‘causation’ for the breach of implied covenant claim is
the same as for the negligence claim.” (Id. at 42). Defendant thus contends, as explained more
fully below, that if plaintiffs failed to prove the existence of a duty or that breach of that duty
caused the fire, the jury’s verdict on both claims must be reversed.
In the present motion, defendant challenges the jury’s verdict as to the existence of a
specific duty to pull back the mulch, and as to defendant’s alleged breach of that duty being a
8
cause of the plaintiffs’ injuries.
a.
Specific Duty of Care
Defendant first contends that the plaintiffs had to prove the existence of a specific duty of
care with respect to the placement of the mulch and that expert testimony was required to
establish that duty of care. Defendant contends that without expert testimony establishing the
industry standard for the distance flammable mulch should be placed from a building, the
members of the jury had no basis for determining whether the landscaping at issue complied
reasonably with proper standards of care.
As support for its position, defendant cites to Stewart v. Worcester Gas Light Co., 341
Mass. 425 (1960). That case involved multiple theories of negligence, including that the gas
company negligently installed too close to the home a dresser coupling along the length of a
service pipe, and when the coupling separated, gas escaped into the home causing the fire. Id. at
434-35. The SJC ordered a new trial, holding that the distance between the home and the dresser
coupling was a “technical matter” on which the a jury would need “expert guidance” to
determine whether it complied with the proper standard of care. See id. Defendant here
contends that the placement of the mulch here is likewise a “technical matter” that the jury
would have no basis for evaluating without the aid of expert testimony. Because no expert
testimony was offered, defendant argues, the jury was improperly left to “conjecture and
surmise” in reaching their verdict.
Plaintiffs respond that they were not required to prove that defendant had a specific duty
to pull back the mulch. They contend that they only had to prove that defendant had knowledge
of a known risk and that a reasonable landlord would have taken steps to address that risk, which
9
defendant did not. Furthermore, they point to the testimony of inspector DiFranco as evidence
that defendant was, in fact, specifically warned about the proximity of the mulch to the
buildings.
First, the Court notes that the jury instructions included the statement, “[i]t is undisputed
that defendant owed a duty to the plaintiffs as their landlord.” (Tr. Day 5 at 39). The instruction
also explained that “a landlord has a duty to take action when it becomes aware, or reasonably
should become aware, of an unreasonably dangerous condition on the premises . . . and the
nature of the action required to be taken . . . depends upon the circumstances of each case.” (Id.
at 38-39). Defendant did not object to those instructions, and defendant’s proposed jury
instructions did not request an instruction that plaintiffs were required to prove the existence of a
specific duty to pull back the mulch. Accordingly, at a minimum it appears that defendant has
waived its right to move for a judgment as a matter of law on the basis that plaintiffs failed to
prove that defendant had a specific duty to pull back the mulch. However, because defendant’s
contentions can be construed as challenging plaintiffs’ ability to prove “the nature of the action
to be taken” in response to a dangerous condition, the Court will address the merits of the motion
on this issue.
In a negligence action, the plaintiff must prove the contours of a duty of care with expert
testimony when “lay persons could not easily appraise the . . . alleged negligence as a matter of
common knowledge.” 3 PERSONAL INJURY § 11.09 (MB, 2013). Defendant’s position
misconstrues the theory of the case and inappropriately narrows the duty of care at issue, which
was a landlord’s duty to address a known risk. Plaintiffs did not have to prove that, in the
absence of notice of a risk, a landlord has a duty to place mulch a particular distance from a
10
building. The Stewart case, on which defendant heavily relies, illustrates the point. In that case,
the SJC found that expert testimony was required to support plaintiffs’ theory that the gas
company should not have installed a dresser coupling within a certain distance of the residence.
Stewart, 341 Mass. at 435. Another of the plaintiffs’ theories of recovery was based on the gas
company’s response to the report of a gas leak on the day of the fire. With respect to that theory,
the SJC did not even address the issue of proving the duty of care by expert testimony, and
instead simply found that there was lack of evidence that the gas company breached it. Id. at
434; cf. Russo v. Mystic Valley Gas Co., 5 Mass. App. Ct. 849 (Mass. App. Ct. 1977) (reinstating
a jury verdict on a charge of negligence in failing to respond promptly to notification of a gas
leak). Indeed, the great majority of case law in this area deals with the installation of utility
lines, appliances, or other construction projects. See, e.g., Kenney v. Sears, Roebuck & Co., 355
Mass. 604 (1969); McCabe v. Boston Consol. Gas Co., 314 Mass. 493 (1943); Webb Granite &
Constr. Co. v. Boston & M. R. R., 206 Mass. 572 (1910). In all of those situations, the conduct at
issue occurred before a specific risk had been identified; the risk at issue was the inherent danger
of gas or electricity. Here, in contrast, the risk at issue was not the inherent danger of mulch, but
the unique and specific danger of the mulch surrounding these buildings and its known
propensity to catch fire from careless disposal of smoking materials. See Shantigar Found. v.
Bear Mt. Builders, 441 Mass. 131, 144 (2004) (“Massachusetts law recognizes that in the
absence of a statutory duty to [take certain fire prevention measures], a jury could find such a
duty when the owner knows of a ‘particular danger of fire.’”); accord Little v. Lynn &
Marblehead Real Estate Co., 301 Mass. 156, 161 (1938) (holding that “[n]ot having been shown
to have knowledge of any particular danger of fire, the defendant was not obliged to take
11
precautions to guard against it”).
In Stewart, the SJC also held that expert testimony was not required to establish whether
the duty of care for a gas company included shutting off the gas line at the street when a patron
discontinues service. 341 Mass. at 434. In so holding, the SJC concluded that the jury could
determine the standard of care from the evidence and their common experience and that the
“question was not so dependent on expert engineering knowledge that a jury could have no basis
of decision without expert testimony.” Id.
Here, the question of whether defendant’s duty of care as landlord included moving the
mulch away from the buildings, after having experienced multiple fires in the mulch over a short
period of time, is similarly ascertainable by drawing on common knowledge and experience. In
addition, inspector DiFranco testified that he specifically suggested pulling the mulch away from
the building. Under the circumstances, the Court finds that the jury could have had a reasonable
basis in the evidence for its decision.
b.
Causation
Defendant contends that expert testimony was also necessary to prove that the proximity
of the mulch to the building caused the fire to spread to the building. Defendant cites Little, 301
Mass. at 159-60, for the proposition that plaintiffs in a negligence claim must prove a causal
connection between a particular condition on a defendant’s property and the spread of a fire to an
adjoining building. Defendant then cites a line of Massachusetts cases purportedly holding that
expert testimony is required to establish the cause of a fire, and a jury may not speculate on the
cause of a fire. See, e.g., Enrich v. Windmere Corp., 416 Mass. 83, 88-89 (1993). Combining
these two principles, defendant contends that plaintiffs were required to offer expert testimony as
12
to the existence of a condition that caused the fire to spread from the mulch to the building.
Defendant’s reliance on Little is misplaced. In that case, there was no evidence as to the
cause of a fire in landlord defendant’s building, but there was evidence that the fire spread to
plaintiff’s building because the landlord had temporarily disabled the sprinkler system while it
was under repair. Little, 301 Mass. at 158-59. The court held that because there was no
evidence to suggest that the fire started as a result of landlord’s act or omission, the plaintiff was
required to prove that defendant was aware of the fire to hold it liable for the spread. Id. at 160.
The court, however, made no mention of whether or not expert testimony was required to
demonstrate that the lack of sprinklers caused the fire to spread.
Unlike Little, there was evidence here that defendant was aware both of this specific fire
before it spread to the building and of the increased risk of mulch fires on the premises generally.
Defendant thus had the obligation to exercise reasonable care to ensure that the fire, or any
potential fire created by the dangerous condition, did not spread to the building. There was
evidence here that the mulch was up against the building’s siding and next to the gas meter.
Inspector DiFranco testified that the proximity to the gas line caused the fire to spread more
quickly. A reasonable jury could have found, based on this evidence and their common
knowledge, that it was more likely than not that the proximity of the mulch to the building,
which included the gas line, was a cause of the fire spreading and ultimately engulfing the entire
building. See Deerfoot Farms, Inc. v. New York, N. H. & H. R. Co., 327 Mass. 51, 54 (1951)
(holding that “[t]he fact that the fire was communicated to other property may reasonably be
inferred from common knowledge of the ‘operation of the established laws of nature in the
familiar forms of combustion … and the effects of wind on fire’”) (quoting Gates v. Boston &
13
Maine Railroad, 255 Mass. 297, 302 (1926)); see also Commonwealth v. Levesque, 436 Mass.
443, 454 (2002) (holding that “[e]ven without [] expert testimony, the grand jurors’ common
knowledge of the nature of fire would have allowed them to conclude that a fire spreads and
becomes more dangerous the longer it is left unattended”).
Furthermore, the initial cause of the fire was not at issue. In many of Massachusetts
cases specifically requiring expert testimony on the issue of a fire’s cause, the claims were based
on an allegation that a defective product or condition caused the fire. See, e.g., Enrich, 416
Mass. 83; Kenney v. Sears, Roebuck & Co., 355 Mass. 604 (1969); Safety Ins. Co. v. Home
Store, Inc., 18 Mass. L. Rep. 688 (Mass. Super. Ct. 2005). In those cases, the courts generally
required expert testimony to establish that the alleged defect was the most likely source of the
fire, as opposed to other potential sources, such as electrical fire in a building’s wiring or fuse
box. See, e.g., Enrich, 416 Mass. at 85. Other cases cited by defendant as support for their
position on expert testimony merely stand for the principle that there must be some proof of a
fire’s cause and the issue cannot be decided by the application of res ipsa loquitor. See, e.g.,
Triangle Dress, Inc. v. Bay State Serv., Inc., 356 Mass. 440, 441-42 (1969) (“There was no direct
evidence of the cause of the flames. There was not only a complete absence of expert opinion
testimony but it seems to us a lack of evidence establishing facts upon which an expert opinion
could be predicated.”); A. Shapiro Realty Corp. v. Burgess Bros., Inc., 491 F.2d 327, 331 (1st
Cir. 1974) (upholding a district court’s determination not to give a res ipsa loquitor instruction
because “outbreak of a fire is not evidence of negligence on the part of owner of premises”).
Here, plaintiffs conceded that the initial cause of the fire in the mulch was not a defect or
even defendant’s negligence, but rather the careless disposal of smoking materials. Inspector
14
DiFranco also testified to that fact. Plaintiffs proceeded on a theory that the known risk of a
mulch fire caused by the careless disposal of smoking materials imposed a duty on the landlord
to address it, and that defendant’s failure to address that risk caused the fire to spread to the
building. As noted, there was sufficient evidence from which the jury could reasonably conclude
that defendant’s failure to act caused the fire to spread quickly to the building. The jurors were
also entitled to rely on their “common knowledge of the nature of fire” in determining what
facilitated the spread of the fire in terms of the mulch’s proximity to other flammable materials
on the building. Levesque, 436 Mass. at 454; see also Gates, 255 Mass. at 302 (holding that
“[t]he operation of the established laws of nature in the familiar forms of combustion, the
tendency of fire to persist when once started in wood, and the effects of wind on fire, are matters
of common knowledge”).
Here, the Court instructed the jury that plaintiffs had to prove that “Simpson’s breach of
duty, if any, was a cause of their injuries . . . [or, in other words, that] the harm would not have
occurred absent the defendant’s breach of duty.” (Tr. Day 5 at 40). Again, defendant did not
object to this instruction or offer a proposed alternative that required plaintiffs to prove specific
causation as to the spreading of the fire. In any event, plaintiffs did offer evidence of the specific
reasons that fire spread and spread quickly, and the jury could reasonably credit that evidence.
Accordingly, the defendant’s motion for judgment as a matter of law will be denied as to
the claims for negligence and breach of the implied covenant of quiet enjoyment.
2.
Emotional Distress
The Court instructed the jury that in order to award compensatory damages for emotional
distress, each plaintiff had to prove that (1) she suffered emotional distress and (2) she
15
experienced an objective manifestation of that emotional distress. The Court explained that
objective manifestations of emotional distress are physical symptoms such as severe headaches,
insomnia, muscle tension, fatigue, nausea, vomiting, depression, shortness of breath,
uncontrollable crying spells, or loss of appetite. See Sullivan v. Boston Gas Co., 414 Mass. 129,
138-39 (1993) (listing symptoms such as “severe headaches, occasional suicidal thoughts, sleep
disorders, reduced libido, fatigue, stomach pains, and loss of appetite [as] sufficient physical
symptoms of emotional injury to send a case to trial”); Gutierrez vs. Mass. Bay Transportation
Authority, 437 Mass. 396 (2002) (listing symptoms as depression, shortness of breath,
nightmares, uncontrollable crying spells, depression, anger, anxiety, and citing two earlier cases
that involve those symptoms). The Court did not instruct the jury that objective manifestations
had to be proved by corroborating evidence. Defendant did not propose that such an instruction
be given.
Defendant now contends that the jury’s verdict must be set aside as to the awards of
emotional distress damages, because plaintiffs failed to corroborate their physical symptoms
with objective evidence, instead relying only their own testimony. Defendant cites Sullivan for
the proposition that plaintiffs needed to offer more evidence than simply their own testimony
that they were upset, dismayed, humiliated, or angry. 414 Mass. at 137.
The SJC has clarified that the ruling of Sullivan addressed “the range of symptoms that
may provide the type of objective evidence to prove physical harm.” Gutierrez, 437 Mass. at
412. The SJC indicated that Sullivan removed the requirement that “plaintiffs had to substantiate
the objective symptomatology with expert medical testimony.” Id. (internal citations omitted).
As the Sullivan court explained, the overall goal of the rule is to ensure that plaintiffs
16
“corroborate their mental distress claims with enough objective evidence of harm to convince a
judge that their claims present a sufficient likelihood of genuineness to go to trial.” 414 Mass. at
137-138.
In Kelly v. Brigham & Women's Hosp., 51 Mass. App. Ct. 297 (2001), the Massachusetts
Appeals Court considered a case where the only evidence of objective physical symptoms was
the plaintiff’s own testimony that she had “cramps, shortness of breath, and nightmares.” Id. at
306. The court held that “[w]hile it is true that these complaints could be self-serving, the
defendants filed nothing—and the record contains nothing—setting forth facts that differentiate
the plaintiff’s symptoms from those described in the cases of Sullivan v. Boston Gas . . . and
Bresnahan v. McAuliffe. . . . Thus, while it is a close question, the plaintiff testified to sufficient
emotional distress to survive the defendants’ motion for summary judgment.” Id. Furthermore,
as defendant concedes, the Sullivan court indicated that evidence that the plaintiffs watched their
home burn to the ground might be sufficient, in and of itself, to corroborate the physical
manifestations of emotional distress. 414 Mass. at 130, 140.
Despite defendant’s argument to the contrary, all of the plaintiffs here testified that they
observed the burning of their homes in at least some capacity. And they all testified that they
experienced the type of physical symptoms described in Sullivan and Guiteierrez. Although it is
certainly true that, like the plaintiff in Kelly, plaintiffs’ testimony as to these symptoms may have
been self-serving and therefore less credible, the jury was entitled to credit it. Accordingly,
defendant’s motion for judgment as a matter of law on the emotional distress claims will be
denied.
17
B.
New Trial as to Liability
1.
Weight of the Evidence
The first ground on which defendant bases its request for a new trial is the contention that
the verdict was against the weight of the evidence as to liability. For the reasons set forth above,
the Court finds that a reasonable jury could have found for plaintiffs as to liability and thus “the
outcome was not against the clear weight of the evidence such that upholding the verdict will
result in a miscarriage of justice.” Goulet, 512 F.3d at 44. Accordingly, defendant’s motion for
a new trial as to liability will be denied.
2.
Evidence of Subsequent Remedial Measures
The second ground on which defendant bases its request for a new trial is the admission
of evidence concerning the subsequent remedial measure of pulling back the mulch. Defendant
argues that such evidence was admitted to prove negligence in contravention of Fed. R. Evid.
407, which prejudiced the defendant such that a new trial is warranted.
The first such evidence came in the form of testimony of Victoria Jackman, a defense
witness, while she was being cross-examined by plaintiffs’ counsel. Ms. Jackman was asked
when the decision to pull back the mulch was made, and the Court permitted the question, not
immediately understanding that plaintiff was seeking to elicit evidence of subsequent remedial
measures. Jackman then testified that the decision was made shortly after the fire. The Court
then immediately (indeed, without being requested to) gave the following curative instruction to
the jury:
Let me caution the jury. Obviously everyone is encouraged to make things safer
after something has happened, and you cannot use evidence that something was
done after the fact to make something safer as proof it wasn’t safe before the
incident happened. We expect and want everyone to learn from incidents and to
18
improve things as time goes on.
(Tr. Day 4 at 110-11) (emphasis added). No objection was made to that instruction, and there
was no request for further instruction as to that issue. No further testimony concerning
subsequent remedial measures was elicited from Jackman.
The next witness was Dave Homan. On direct testimony, defense counsel asked more
specifically about why and when he actually ordered the mulch pulled back. When plaintiffs’
counsel attempted to impeach that testimony on cross-examination, defense counsel objected.
The Court then ruled in a sidebar conference that defendant had opened the door during direct
examination of Homan at least to a limited extent, and permitted the testimony.
During closing argument, defense counsel again mentioned Homan’s testimony that it
was his idea to pull back the mulch after the fire. In rebuttal, plaintiffs’ counsel referred to the
fact that “counsel just brought up that it was more than a week or a week thereabouts that they
finally made the decision after the big fire on May 29th to pull the mulch away from the
buildings.” (Tr. Day 5 at 29). Defendant contends that this statement in rebuttal further
compounded the prejudice of the original improper admission.
Defendant overstates the effect of this small portion of testimony, and understates its own
counsel’s role in bringing it before the jury. Defense counsel admitted that his purpose in
eliciting the testimony from Homan was to show that it was defendant’s idea, and not the fire
department’s, to pull back the mulch.4 Counsel was certainly permitted to waive the protection
4
Counsel stated at the sidebar conference during Homan’s cross-examination related to this issue that “the
reason [he] introduced it is because the entire time the suggestion has been that they said pull the mulch back. . . .
Simpson’s response is after the fire, it was then they said maybe we should pull the mulch back, so that’s what that
testimony is for, even though it’s not germane, it’s more rehabilitating my client in the eyes of the jury that they
didn’t receive that information and ignore it.” (Tr. Day 4 at 138).
19
of Rule 407 and adopt such a strategy. Implicit in counsel’s decision to pursue that strategy is a
determination that the information about the subsequent remedial measure was not particularly
prejudicial to his client. It would be illogical and unfair, with the benefit of hindsight, to permit
defendant to use the admission of that evidence to vacate the jury verdict.
It is true that Jackman’s testimony about the timing of the decision to pull back the
mulch—which preceded Homan’s testimony—should not have been elicited. However, that
testimony was limited, and the Court immediately gave a curative instruction. While that
instruction fell perhaps somewhat short of absolute perfection, it was not objected to, and
counsel did not request anything further. If defense counsel had not elicited additional
information, the matter would have ended there. Instead, defense counsel chose to reintroduce
the subject.
Under the circumstances, the Court finds that the admission of evidence of subsequent
remedial measures does not warrant a new trial.
3.
New Theory of Liability
Defendant next contends that it was prejudiced by plaintiffs’ reliance on a previously
undisclosed theory of liability at trial. Specifically, defendant contends that in the pre-trial
memorandum plaintiffs asserted that their theory of liability was based upon whether or not the
landscaping mulch was a dangerous and flammable form of yard waste. Defendant contends that
it relied on that assertion and consequently was prejudiced at trial when the theory of liability
actually rested on the defendant’s failure to pull the mulch back away from the building.
In the joint pre-trial memorandum, plaintiffs included the following paragraph in their
“concise statement of the evidence”:
20
Plaintiffs will show Simpson at all times was in control of all common areas of
the premises. Plaintiffs’ evidence will show Simpson knew, after three fires, that
the bark mulch installed by the landscaping company was highly flammable.
Plaintiffs expect the evidence to show Simpson failed to monitor the landscaping
work performed on its property. Plaintiff’s evidence will show Simpson owed a
duty of care to its tenants to remove any known hazards within its control from
the premises. Plaintiffs evidence will show Simpson, as required of all landlords
in Massachusetts, must keep their premises in a safe condition. Plaintiffs expect
the evidence to show Simpson knew that the bark mulch posed an unsafe
condition. Plaintiffs expect the evidence to show Simpson failed to correct the
known safety hazard, highly flammable bark mulch, on the premise[s] after three
fires occurred within a month of the installation of the bark mulch. Plaintiff’s
evidence will show Simpson had a reasonable opportunity to correct the hazard
by removing the mulch.
(Joint Memo. at 2-3). Defendant contends that the paragraph did not give it adequate notice of
plaintiffs’ theory of liability.
The paragraph did not simply allege that the mulch was a defective or inherently
dangerous product; it specifically referred to the prior fires as having put defendant on notice
that the mulch posed a danger at Highlands at Dearborn. The paragraph also alleged that
defendant failed to reasonably address a dangerous condition, which it allegedly could have done
by “removing the mulch.”
At trial, plaintiffs introduced evidence that moving the mulch away from the buildings
would have likewise addressed the dangerous condition. Moving a known fire risk further away
from a residence and removing it entirely are not totally distinct remedial actions; they are
essentially different degrees of the same action. Defendant was certainly on notice, and
therefore should have been prepared to defend, the argument that a reasonable landlord would
have moved or removed the mulch. The likely potential defenses against those allegations—that
the mulch was not dangerous or that leaving it in place was not unreasonable due to feasibility or
cost issues—are essentially identical. Accordingly, the defendant’s motion for a new trial on the
21
ground that plaintiff’s advanced a new and unanticipated theory of liability at trial will be
denied.
4.
Medical Evidence Testimony
Finally, defendant contends that it was prejudiced by the admission of evidence of
medical treatment in the form of plaintiffs’ own testimony. Defendant contends that it relied on
the Court’s pre-trial ruling precluding plaintiffs from introducing any medical evidence because
no medical records were produced in discovery.
At trial, plaintiffs did not attempt to introduce medical records. However, some of the
plaintiffs mentioned seeking out treatment from counselors or doctors in response to open-ended
questions about how they coped with the effects of the fire during direct examination. Those
statements occurred on three occasions, and each drew an objection. Gardner testified that she
made a telephone to call to a hotline just to talk to somebody; the Court struck any reference to
insurance within her answer. (Tr. Day 3 at 42-43). Fuliciano testified that she went to see a
doctor a few days after the fire because she was having “anxiety attacks;” she also began to say
that she was prescribed a medication but was interrupted by an objection, which was sustained,
striking any reference to prescription medication. (Tr. Day 3 at 72-73). Felteau testified that she
went to see a therapist. (Tr. Day 4 at 33).
Before Gardner had completed her answer, which referred to the hotline she called,
defendant objected, citing the Court’s ruling on the motion in limine precluding medical
evidence. During a sidebar conference, the Court considered the issue at length, including the
reach and import of its earlier ruling. Plaintiffs’ counsel argued that there was no record created
and the fact that a person sought treatment, in and of itself, should not be excluded. The most
22
relevant portion of the discussion is reproduced below:
THE COURT:
. . . let me ask, first off, what is your understanding of what
happened? What did you request?
MR. HEALY:
As part of discovery, we asked for all documentary
evidence to prove that there are medical damages. As the
trial approached, I reached out to Attorney D’Angelo and I
indicated those overtures, if you are intending on producing
any medical records, please provide them to me. Those
requests for medical records were made prior to this trial.
THE COURT:
Is counseling a medical record?
MR. HEALY:
I would suggest it is.
MR. D’ANGELO:
But my argument is we never had any – there’s no reason
she can’t testify that she sought treatment. . . .
THE COURT:
Here’s what I’m going to do, I’m going to allow her to say
in substance that she called seeking counseling and that she
had some telephone conversations with the counselor
without getting into the content of that, and we’ll leave it at
that.
(Tr. Day 3 at 41-42). Consistent with that decision, the Court did not strike later statements by
Fuliciano and Felteau that they sought treatment, but did strike Fuliciano’s reference to
prescription medication.
The Court’s decision was within the scope of its discretion, and was not unfair under the
circumstances. No damages were sought for the costs of medical treatment and no records were
offered into evidence. The only statements the Court permitted to remain part of the record were
simple statements of fact—that some plaintiffs sought treatment. None of those statements
appear to have been disputed, and all appear to have been made by plaintiffs at their depositions.
The content or outcome of the treatment was not in evidence. Indeed, as the Court noted during
the sidebar conference, evidence that a plaintiff sought treatment, standing alone, is insufficient
23
to prove a physical manifestation of emotional distress. Under those circumstances, it is hard to
see how the short statements at issue truly prejudiced the defense. Accordingly, defendant’s
motion for a new trial on the ground that medical evidence was improperly introduced at trial
will be denied.
C.
Remittitur
Defendant also seeks an order of remittitur of the emotional distress damages, giving
plaintiffs the option of accepting lower damages awards or going forward with a new trial as to
damages alone. Defendant contends that the emotional distress damages should be remitted
because they were (1) impermissibly punitive in nature, (2) excessive and against weight of
evidence, and (3) impermissibly based on the loss of pets.
All of the plaintiffs were awarded exactly the same large amount of emotional distress
damages despite their differing testimony as to the effects of the fire on them. There was no
psychiatric, psychological, or other expert testimony as to the extent of any of the emotional
distress experienced by plaintiffs; all of the evidence came in the form of plaintiff’s own, often
emotionally charged, testimony. No plaintiff claimed permanent physical injury. No plaintiff
was hospitalized. That is at least some indication that the damages were not grounded in the
evidence, but rather excessive and perhaps punitive.
There was also a significant amount of testimony about the loss of pets. The Court did
give a limiting instruction informing the jury that pets are considered property under the law of
Massachusetts and therefore emotional distress damages could not be awarded for their loss;
however, considering the content and emotional nature of the testimony, there is at least some
doubt that the jury heeded the instruction. Rule v. Fort Dodge Animal Health, Inc., 604 F. Supp.
24
2d 288, 305 (D. Mass. 2009) (“Massachusetts has not extended recovery of damages in tort for
emotional distress resulting from an injury to a third party to include persons who suffer the loss
of a companion animal.”). The testimony need not be reproduced in full here, but it involved
tearful statements likening pets to “babies” and multiple accounts of futilely searching for pets
after the fire.
As stated at the outset, a district court is “obligated . . . to grant a remittitur or a new trial
on damages only when the award ‘exceeds any rational appraisal or estimate of the damages that
could be based upon the evidence before it.’” Eastern Mountain, 40 F.3d at 502 (internal
citations omitted).5 “Although determining whether damages for emotional distress are
excessive is difficult, such damages are not immune from review.” Koster v. TWA, 181 F.3d 24,
34 (1st Cir. 1999).6 The First Circuit has held that it is appropriate for a district court to take the
absence of medical or psychiatric evidence into account in fashioning a remittitur. Sanchez v.
Puerto Rico Oil Co., 37 F.3d 712, 724 n. 13 (1st Cir. 1994) (affirming a decision to remit the
award for emotional distress from $150,000 to $37,500). Furthermore, “[a]wards in comparable
cases are instructive.” Aponte-Rivera v. DHL Solutions (USA), Inc., 650 F.3d 803, 811 (1st Cir.
2011).
Courts have ordered remittiturs in a number of cases where emotional distress damages
were awarded. Other than Sanchez, defendant cites to two other cases where the damages award
5
The Court notes that “federal law governs the question of whether the trial court should order a remittitur
in a diversity case.” Blinzler v. Marriott Int'l, 81 F.3d 1148, 1161 (1st Cir. 1996) ?(citing Donovan v. Penn Shipping
Co., 429 U.S. 648, 649 (1977)).
6
Because it is extremely difficult, if not impossible, to discern whether the jury’s awards were based on
improper motivations, such as punishing defendant or compensating plaintiffs for emotional distress caused by their
loss of pets, the Court will focus this inquiry on whether or not the awards of $450,000 were supported by the
evidence.
25
was found to be excessive in light of an absence or dearth of medical or psychiatric evidence.
See Soto-Lebron v. Fed. Express Corp., 538 F.3d 45, 69 (1st Cir. 2008) (finding a $1,800,000
emotional distress award to be “shockingly exorbitant” and ordering a new trial where the
“evidence did not include any expert psychological testimony and did not come close to
establishing that he was disabled by his emotional injury”); Labonte v. Hutchins & Wheeler, 424
Mass. 813, 823-26 (remanding for remittitur a grossly excessive $550,000 emotional distress
award where the plaintiff suffered from depression and sought counseling but had not been
hospitalized or taken medicine). Other cases are to the same effect. See, e.g., Subatch v. Harvey,
1985 U.S. Dist. LEXIS 13249 (D. Mass. 1985) (finding that $250,000 for emotional distress
when there was, among other things, no evidence of medical expenses was “so extravagant an
amount as to be unjust” and therefore reducing the award to $75,000).
Here, the jury awarded emotional distress damages of $450,000 per plaintiff,
notwithstanding the absence of evidence of medical or psychiatric diagnoses or expenses. After
a careful review of the record and a compendium of analogous cases, the Court concludes that
the awards for emotional distress damages in this case were excessive and not supported by the
weight of the evidence. In most of the cases reviewed in the course of making this determination
similarly excessive damages awards were remitted by $150,000 to $800,000. See, e.g., Trainor
v. HEI Hospitality, LLC, 699 F.3d 19, 32 (1st Cir. 2012) (originally remitted from $1,000,000 to
$500,000, remanded by First Circuit for remittitur to $200,000); Aponte-Rivera v. DHL Solutions
(USA), Inc., 650 F.3d 803, 811 (1st Cir. 2011) (affirming a remittitur from $350,000 to
$200,000); Whitfield v. Melendez-Rivera, 431 F.3d 1, 18 (1st Cir. 2005) (awards to parents of
injured victim remit by First Circuit from $500,000 each to $100,000 each); Koster, 181 F.3d at
26
35-36 (remit by First Circuit from $716,000 to $250,000).
Accordingly, the Court will order a new trial on the sole issue of emotional distress
damages unless plaintiffs agree to accept remitted emotional distress damages of $100,000 each.
V.
Conclusion
For the foregoing reasons, defendant’s motion for judgment as a matter of law, or, in the
alternative, for a new trial as to liability will be DENIED. Defendant’s motion for a new trial or
remittitur as to emotional distress damages will be GRANTED; plaintiffs shall inform the court
by August 29, 2013, whether they seek a new trial. If not, judgment shall enter in the amount of
$100,000 in emotional distress damages as to each plaintiff, plus their already determined
damages as to loss of property and pre-judgment interest.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: August 9, 2013
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