Background
On November 12, 2014, Son Treme was driving on the highway when a tractor-trailer operated by an employee of Wal-Mart Transportation, LLC struck his vehicle from behind. The following day, Son sought medical treatment and was diagnosed with a concussion, cervical strain, and a wrist sprain. He was prescribed diazepam and Percocet, but when he filled those prescriptions at a CVS Pharmacy, he was accidentally given Prozac instead. After taking the Prozac as directed, Son experienced what emergency responders believed was a seizure on November 16, falling forward in his kitchen and striking his head on the floor. In December 2016, Son and his then-wife Heather brought negligence and loss-of-consortium claims against Wal-Mart and CVS Pharmacy.
Before trial, the plaintiffs retained Dr. Gregory O’Shanick, a neurology and neuropsychiatry expert, who ordered advanced neurological imaging performed at a SimonMed radiological facility in Nevada. Dr. Travis Snyder, a neuroradiologist employed by SimonMed, prepared a report based on the imaging results. The plaintiffs sought to introduce this SimonMed report at trial under G. L. c. 233, § 79G. CVS filed a motion in limine to preclude the report, and the trial judge ultimately excluded it on two grounds: first, that Dr. Snyder had not “treated or examined” Son; and second, that the statute required nonhospital records to be certified by the attending physician, whereas the report was certified only by an authorized agent of SimonMed.
Following trial, the jury found Wal-Mart and CVS negligent and awarded $1,424,102 to Son and $350,000 to the minor child for loss of consortium. After the plaintiffs settled with CVS, amounts previously paid by CVS as a joint tortfeasor were applied under G. L. c. 231B, § 4(a), reducing the judgment against Wal-Mart to zero dollars. The plaintiffs then moved for additur or a new trial on damages, arguing that the improper exclusion of the SimonMed report led to an abnormally low verdict. The trial judge denied the motion, and the plaintiffs appealed.
The Court’s Holding
The Massachusetts Appeals Court affirmed both the judgment and the order denying the plaintiffs’ motion for additur or a new trial. The court applied an abuse-of-discretion standard to the trial judge’s evidentiary ruling and to the denial of the post-trial motion. Critically, the panel declined to reach the question of whether the SimonMed report was properly excluded under § 79G, instead assuming arguendo that its exclusion was error and proceeding directly to the prejudice analysis.
The court concluded that the plaintiffs failed to demonstrate that the exclusion of the SimonMed report “injuriously affected” their substantial rights under G. L. c. 231, §§ 119 and 132. Although the report itself was not admitted, the jury heard the relevant substance of its findings through the prerecorded expert testimony of Dr. O’Shanick. During that testimony, the jury viewed MRI images and slides from the SimonMed report while Dr. O’Shanick interpreted them, opining to a reasonable degree of medical certainty that lesions visible in the imaging were caused by the concussions Son sustained on November 12 and 16, 2014. The court found that this testimony was competent to rebut the defense experts’ radiological reports reflecting “normal” and “unremarkable” findings.
The court also rejected the plaintiffs’ argument that the seventeen-day gap between Dr. O’Shanick’s testimony and jury deliberations, combined with a jury note asking about access to expert reports, demonstrated prejudice. The panel shared the trial judge’s skepticism that a lay jury could derive independent value from the highly technical SimonMed report without the interpretive aid of a medical expert. If the jurors wanted to refresh their recollection of Dr. O’Shanick’s testimony, the court noted, they could have requested to review it, but no such request was made.
Key Takeaways
- Harmless error analysis can moot evidentiary disputes. Courts may bypass a contested admissibility question entirely if the appellant cannot show that the excluded evidence would have made a material difference in the outcome.
- Expert testimony can cure the exclusion of underlying reports. When an expert witness testifies to the substance and conclusions of an excluded medical report, and the jury has the opportunity to view the underlying images, the exclusion of the report itself may not be prejudicial.
- Additur and new-trial motions face a demanding standard. A jury award will not be disturbed unless its inadequacy “descend[s] to the level of unreasonableness, such that a miscarriage of justice would result.” Trial judges enjoy very broad discretion on these motions.
- Appellants bear the burden of demonstrating prejudice with a complete record. The court noted that its evaluation was further inhibited by the plaintiffs’ failure to supply transcripts of the cross-examinations at issue, reinforcing the importance of a complete appellate record under Mass. R. A. P. 18.
Why It Matters
This decision reinforces the high bar that plaintiffs face when seeking additur or a new trial on damages in Massachusetts. Even where an evidentiary ruling is questionable, the appellate court will not grant relief unless the excluded evidence would have materially changed the outcome. The panel’s willingness to assume error without deciding it reflects a pragmatic approach to harmless-error review that prioritizes the prejudice inquiry over technical admissibility questions.
For practitioners, the case offers a practical lesson about trial strategy: when a key medical report faces exclusion, presenting its substance through live or recorded expert testimony can substantially mitigate the risk of a successful appeal. Conversely, appellants challenging evidentiary rulings must demonstrate a concrete connection between the excluded evidence and the jury’s award, rather than relying on the mere fact of exclusion. The decision also serves as a reminder that an incomplete appellate record can undermine even a meritorious claim of prejudice.