Preview
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
8.2
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS SUPERIOR COURT
CIVIL ACTION NO: 2381cv02713
STEVEN LUPPOLD,
Plaintiff,
Vv.
RECEIVED
MEDICAL PROFESSIONAL MUTUAL 1/16/2024
INSURANCE COMPANY d/b/a COVERYS,
LAWRENCE EDWARD OLLIVER, AND
KATHY PFEIFER SPURLING
Defendants
AFFIDAVIT OF HARVEY NOSOWITZ
I, Harvey Nosowitz, depose and state as follows:
1 1am an attorney duly licensed to practice in the Commonwealth of Massachusetts. |
am one of the attorneys representing Medical Professional Mutual Insurance Company
(MPMIC”), Lawrence Edward Olliver, and Kathleen Pfeifer Spurling in this action.
Attached to this Affidavit as Exhibit A is a true and accurate copy of the Memorandum
of Law of Defendant, Susan Hanlon, R.N., In Support of Her Motion for Judgment
Notwithstanding the Verdict, To Set Aside the Verdict, and/or To Order a New Trial,
And For Remittitur in Steven Luppold v. Carlos Flores, N.P., Charles Loucraft, P.A.,
Stefanie Busa, R.N., Susan Hanlon, R.N., Carla Crocker, R.N., and Merrimack Valley
Emergency Associates Inc., Middlesex Superior Court Civil Action No. 1681¢v01287
(the “Underlying Suit”).
#1308095
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Superior Court - Middlesex
Docket Number 2381CV02713
Attached to this Affidavit as Exhibit B is a true and accurate copy of the docket for the
Underlying Suit.
Sworn under the pains and penalties of perjury this 4 iy of December, 2023
f ene
et y on
Haive y Nojowlz
CERTIFICATE OF SERVICE,
Thereby certify that on December I $5823, I caused a true copy of the above Affidavit to
be served on counsel of record for each other party as follows:
By email to counsel for Mr. Luppold to: and
dose ; f pinandly one,
a
\A aA x
i
Harvey ys
#1905095
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Superior Court - Middlesex
Docket Number 2381CV02713
EXHIBIT A
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79.1
Docket Number 1881CV01287
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT
C.A. NO. 1681CV01287
STEVEN LUPPOLD,.
Plaintiff,
v
RECEIVED
CARLOS FLORES, NP.,
CHARLES LOUCRAFT, P.A., 4I712023
STEFANIE BUSA, R.N.,
SUSAN HANLON, R.N., AND
CARLA CROCKER, RN.,
Defendants
MEMORANDUM OF LAW OF DEFENDANT, SUSAN HANLON, R.N., IN SUPPORT
OF HER MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, TO SET
ASIDE THE VERDICT AND/OR TO ORDER A NEW TRIAL, AND FOR REMITTITUR
NOW COMES the Defendant, Susan Hanlon, R.N. (“Nurse Hanlon”), by ker counsel, to
request that this Honorable Court enter judgment for Nurse Hanlon notwithstanding the verdict
rendered in this matter on March 24, 2023, pursuant to Rules 50 and 59 of the Massachusetts
Rules of Civil Procedure, Nurse Hanlon states the requested judgment notwithstanding the
verdict is necessary to prevent a failure of justice, as the verdict in this matter as against Nurse
Hanlon was wholly and unquestionably against the weight of the evidence. In particular, Nurse
Hanlon states Plaintiff's proffered evidence failed to establish his prima facie case for negligence
and, further, the award of damages is grossly disproportional to the evidence submitted at trial.
No reasonable jury could have returned a verdict for Plaintiff based on the evidence presented
absent speculation, conjecture, being misled by improper argument, and confusion with the
Court's erroneous instructions. As well, in light of Plaintiff's proffered evidence against Nurse
JN
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Hanlon, it is plainly clear the jury was swayed by dislike of Nurse Hanlon, which Plaintiff's
counsel improperly invited and directed the jury to consider in reaching a verdict.
Nurse Hanlon was denied a fair trial because of the inappropriate and misleading
arguments made by Plaintiff's counsel in closing that knowingly invited the jury to consider
matiers beyond evidence at trial and because of the lack of proper admonishment and instruction
by the Court. Nurse Hanlon was also prejudiced by the trial Court’s inappropriate allowance of
Plaintiff experts to opine on matters not disclosed for trial and the Courts denial of Nurse
Hanlon’s counsel's request to examine Defendant, PA Loucrafl, to establish his clear bias and
motivation for providing testimony against Nurse Hanlon in order to secure a so-called
“high/lor agreement with Plaintiff as a guid pro quo that insulated PA !oucraft in the event of
an adverse verdict.
Nurse Hanlon, in the alternative, asks this Honorable Court to set aside the verdict as
excessive and punitive and/or order a new trial in order to prevent a shocking failure of. justice.
The Court instructed the jury improperly on the matter of Plaintiff"s burden relating to causation
when it failed to instruct the jury correctly on “but-for” causation as required by Douil v. foster,
487 Mass. 1 (2021) and instead gave a muddled and misleading instruction that allowed the jury
to consider whether Nurse [anlon was “a cause” of Plaintiff's injury rather than the requisite
standard of the “but-for” cause. This dilution of the Plaintiff's burden considering the facts of
this matter misled the jury and allowed for a verdict against Nurse Hanlon. Finally, Nurse
Hanlon secks remittitur as the damages assessed were excessive and noi in keeping with the
evidence presented at trial. In support of this motion, Nurse Hanlon states as follows:
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Summary of Case
‘Trial of this matter commenced on Tuesday, March 7, 2023, with jury selection, and
ended on March 24, 2023 with the jury’s verdict in Plaintiff's favor against Nurse Hanlon and
the co-Defendants, PA Loucraft and NP Flores. The jury found in favor of Nurse Crocker and
Nurse Busa. At the close of Plaintifl's case, Nurse Hanlon moved for a Sirected verdict and she
renewed her motion for direcied verdict at the close of all evidence. The Court denied both
motions. The jury awarded Plaintiff $10 million dollars for past damages and $10 million for
future damages calculated over 33 years. Bused on the evidence at trial as discussed below, the
verdict presents as a Punishment verdict and against the weight of the evidence. In short, this
jury, upon whom the system places such great reliance, failed Nurse Hanlon.
Tn this case, Plaintiff claimed the conduct of the Defendants in March 2015 following his
presentment to the Lowell General Hospital (“LGH”) Emergency Department on two separate
occasions (March 7 and March 13) caused delay in diagnosis of blood clots that diminished
circulation to and perfusion of his left lower extremity. Plaintiff further asserted the alleged delay
resulted in his left leg becoming unsalvageable such that it required amputation on March 18,
2015. He claimed amputation would have been unnecessary with an carlier diagnosis ai either of
the subject LGH visits.
The undisputed evidence at trial cstablished the co-Defendant providers, PA Loucraft and
NP Flores (“mid-level providers”), were the sole Defendants qualified and credentialed to
diagnose Plaintiff's complaints and/or order testing or other intervention to facilitate a diagnosis
and provide treatment. Nurse Hanlon’s care was adjunct and secondary to the mid-level
providers scope of practice as she had no ability to diagnose and/or treatment Plaintiff's
condition. The conduct that Plaintiff claimed resulted in his amputation were unequivocally the
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actions of the mid-level providers and not Nurse Hanlon. The evidence at trial concerning the
respective roles of and attendant scope of practice of the Defendants made the Court’s
instructions to the jury on Plaintitf’s burden on causation particularly critical. Nowhere in the
evidence could the jury find “but-for” Nurse Hanlon’s conduct Plaintiff would not have required
amputation of its leg. As noted, however, the Court failed to properly instruct the jury, which
allowed jurors to weigh the evidence against Nurse Hanlon on a lesser and erroneous standard
for causation.
Despite the undisputed and exclusive role of the mid-level providers concerning
Plaintiff's care and outcome, Plaintitf offered testimony from his purported nursing expert,
Nurse Smith, opining on alleged breaches of the applicable standard of care by Nurse Hanlon, It
was undisputed Nurse Hanlon encountered Plaintiff on three occasions. Nurse Hanlon performed
the discharge of Plaintiff as ordered by PA Loucraft on March 7, 2015 and she assessed Plaintiff
on March 13" and then performed his discharge that day per order of NP Flores. The evidence
established no other involvement of Nurse Hanlon in Plaintiff’s care, nor did the evidence
establish by direct or other evidence that Nurse Hanlon observed or had knowledge of any
information regarding Plaintiff that was not known to or available to either of the mid-level
providers. Quite simply, the evidence did establish Nurse Hanlon's conduct in no way influenced
or affected either mid-level provider’s exclusive role and responsibility to Plaintiff's care
decisions and outcome. A reasonable jury considering the evidence had no basis to find “but-for”
Nurse Hanlon’s conduct the Plaintiff would not have required amputation of bis leg. The verdict
against Nurse Hanlon, therefore, could only have resulted from the jury being swayed by
improper influences or instruction.
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Considering the testimony of Nurse Smith, the expert called by Plaintiffto offer standard
of care testimony against Nurse Hanlon, her opinions failed to provide the jury sufficient
evidence find Nurse Hanlon liable for Plaintiff's outcome as either the discharge nurse on both
visit dates pr the attending on March 13",
According to Nurse Hanlon’s role as attending on March 13", Nurse Smith opined that
‘Nurse Hanlon was responsible for assessment of the patient, asking for pain levels, notifying the
provider about the patient’s presence (immediately if it is a potentially dangerous situation),
to document her findings. A copy of Nurse Smith's excerpted trial testimony is attached hereto
as Exhibit A. Nurse Hanlon did each and every one of the actions required by Nurse Smith’:
testimony.iMorcover, the contemporaneous documentation of the mid-level providers recording
their respective evaluations and cxamination of the Plaintiff revealed findings supportive of
proper circulation and perfusion. The evidence supported Nurse Hanlon’s compliance with the
standard of care as expressed by Plaintiff's nursing expert and for the jury to find negligence on
this occasion is clearly contrary to the evidence. Nowhere in the evidence could the jury find a
breach by Nurse Tlanlon on March 13" in her capacity as attending nurse
More specifically, Nurse Smith testified that Nurse Hanlon ought to have examined
Plaintiff and documented a nursing assessment at the time of the March 13" encounter, The
evidence at trial, however, established Nurse Hanlon in fact performed and documented a
i
nursing assessment of Plaintiff on his second visit of March 13, 2015, approximatcly 10 minutes
before NP Flores’ first of two encounters with the Plaintiff. This testimony was undisputed.
Morcover, Nurse Hanlon noted Plaintiffs complaint of pain (foot) and pain level (4/10). It was
also established at trial that if Nurse Ilanlon’s assessment revealed abnormal pulses/circulation —
such would be documented. This testimony
was also undisputed. Finally, Nurse Hanlon’s
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assessment was documented contemporaneous to her assessment and available for NP Flores,
who saw Plaintiff 10 minutes after Nurse Hanlon — testimony also undisputed.
Buurse Smith also offered testimony and opinions against Nurse Hanlon in her role 2s the
discharge nurse for Plaintiff on both subject dates. To this end, Nurse Smith testified regarding
the first discharge by Nurse Hanlon on March 7" that the Depart Summary included reference to
the registration information wherein Plaintiff complained of lefi foot pain and turning purple and
that Nurse Hanton did not report the complaint to PA Loucraft, The evidence, however, clearly
established the information was available equally to both PA Loucraft and Nurse Hanlon.
Indeed, Nurse Smith offered nothing more than acknowledgement the left foot pain and turing
puple notation from registration was autopopulated to the Depart Summary. See ExhibitA.
Nevertheless, Nurse Smith concluded Nurse Hanlon “functioned” below the standard of care as
discharge nurse. In providing the conclusory statement, Nurse Smith providedno explanation or
basis for her opinion. Nurse Smith offered no other standard of care opinion concerning Nurse
Hanlon regarding events on March 7". Accordingly, this left consideration of Nurse Hanlon’s
compliance or lack of compliance with the standard of care on March 7th entircly to the jury’s
conjecture or speculation.
Nurse Smith next testified regarding events on March 13" and acknowledged Nurse
Hanlon assessed Plaintiff's foot pain for which he reported on a pain scale of 1-10, a score of 4,
and that she discharged Plaintilf. Nurse Smith was asked to assume Nurse Hanlon did not
document pulses and did not discuss the information known to both Nurse [snlon and NP Flores
about Plaintiff's complaint of foot pain with the Nurse Practitioner. Ignoring the undisputed
testimony and facts that Nurse Hanlon would document abnormal pulses if identified and NP
Flores’ acknowledgement of the Depart Summary documentation — as well as NP Flores’ two
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assessments of Plaintiff afier Nurse Hanlon’s assessment —- Nurse Smith offered the opinion,
without a basis, that the standard of care required Nurse [anion to evaluate pulses on discharge
and evaluate Plaintiffs foot and ankle and leg “involving the 5 P’s.” As noted below, the
introduction of testimony regarding “the 5 P’s” was never disclosed and was permitted over
objection. Incredibly, this opinion of Nurse Smith ignored NP Flores’ documentation of
circulation and examination of Plaintiff's foot and ankle. Nurse Smith also claimed without
explanation the standard of care required “discussion with the provider,” but she did not
elaborate on what the discussion would concern or why such discussion was warranted. Nurse
Smith offered her opinions notwithstanding her agreement that NP Flores taoked at the Depart
Summary and it was NP Flores with responsibility for Plaintiff's care. In fact, Nurse Smith and
Plaintiffs causation expert, Dr. Harris, unequivocally agreed there was no information Nurse
Hanlon possessed concerning Plaintiff that was not also known and available to cach of the mid-
level providers on the respective dates of March 7 and March 13". As well, Dr. Harris agreed
without hesitation that each of the mid-levels had more information about Plai nti ff than Nurse
Hanlon since they each were responsible for examination, evaluation, and determining the care
of Plaintiff. Excerpts of Dr. Harris’ testimony is attached as Exhibit B. Acceptance of Nurse
Smith’s opinions rendered the verdict against Nurse Hanlon simply astounding and wholly
against the weight of the evidence and supports fully that the jury based its verdict on matters
outside of the evidence at trial.
Regarding both of Nurse Ifanion’s encounters with Plaintiff, Plaintiff presented no
evidence whatsoever for the jury to find that anything she did or did not do caused or contributed
to cause injury to Plaintiff. Despite the absence of evidence, Nurse Smith offered the opinion
Nurse Hanlon should have spoken with the mid-level providers when discharging Plaintiff, and
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she predicated the opinion on Nurse Hanlon having a concern about Plaintiff's condition. There
was no evidence before the jury, however, that Nurse Hanlon had any concern for Plaintilf’s
condition ai discharge or with either mid-level provider's assessment, evaluation, or diagnosis of
Plaintiff that ‘warranted other action and Nurse Smith pointed to no such evidence.
The overwhelming evidence at trial revealed Nurse Hanlon’s involvement in Plaintiff's
care in no manner caused his left leg amputation and for the jury to find otherwise demonstrated
a verdict soiled by conjecture, speculation, incorrect instruction, improper argument, and a
dislike of Nurse Hanlon that outweighed the evidence at trial. There is no other explanation
based on the evidence for the verdict against Nurse Hanlon and itis plainly against the weight of
the evidence.
Despite the weight of the evidence demonstrating each mid-level’s exclusive role in
making care decisions for Plaintiff, PA Loucraft sought nevertheless to blame Nurse Hanlon. It
was plainly evident PA Loucraft offered newly framed testimony motivated and targeted toward
a finding against Nurse Hanlon as he gratuitously and repeatedly pointed to Nurse Hanlon having
responsibility for Plainti{?’s oufcome on questioning from both his counsel and Plaintiff connsel.
PA Loucraft's motivation and expressed bias warranted examination before the jury and Nurse
Hanlon’s counsel sought to reveal PA Loucraft*s bias in and motivation for his testimony.
Inexplicably, the Court denied Nurse Hanlon’s request to explore these matters on cross-,
examination of PA Loucraft. It.was made clear on the record at sidebar that PA Loucraft
proftered his blame of Nurse Hanlon in return for insulation from an adverse verdict by way of'a
high/low agreement with Plaintiff, which was entered into after PA. Loucraft’s first day of
testimony whereinhe admitted his liability for Plaintiff's amputation and sought io blame Nurse
Hanlon as we!l for the outcome. As was explained to the Court at sidebar, the insurer for PA
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Loucraft’s could not honor its coverage terms for PA Loucraft for an adverse verdict due to ils
financial standing that required rehabilitation. This situation rendered PA Loucraft exposed
personally for an adverse verdict. With the prospect of insufficient coverage, PA Loucraft sought
to implicate Nurse Ianlon in the event ofan adverse verdict in excess of his coverage for
purposes of joint and several liability, in exchange for an executed high/low agreement that
extinguished his personal exposure. As noted, in exror, the Court denied Nurse Hanlon the
relevant and proper inquiry of PA Loucraft’s bias and motivation for offering new and damaging
testimony against Nurse Hanlon. This exclusion of relevant and proper evidence proved
exceptionally prejudicial to Nurse Hanlon and can in no manner be considered harmless error in
light of the verdict. The testimony grossly misled the jury and was orchestrated among PA
Loucraft, his counsel, and plaintiff's counsel.
In response to the Plaintiff's limited and weak claims against Nurse Hanlon, Nurse
Calder testified in full and unreserved support of Nurse Hanlon. Nurse Calder explained Nurse
Hanlon’s role in Plaintiff's care and provided sound and specific bases for Nurse Hanlon’s
compliance with the applicable standard of care. Nurse Calder’s testimony revealed and rendered
the testimony of Nurse Smith bascless and contrary to the facts and evidence of the case.
In light of Plaintiff’s insufficient evidence against Nurse Hanlon, his counsel set out in
closing argument to distract the jury with claims and argument focused outside of the evidence.
To this end, Plaintiffs counsel knowingly invited the jury to consider matters not in evidence.
‘This strategy was permitted by the Court without repercussion. On two matters Plaintiff’s
counse] purposefully and in conscious betrayal of his responsibilities before the Court, directed
the jury’s attcntion to what he know to be improper argument. First, counsel directed and
implored the jury to consider Nurse Hanlon’s absence during trial and argued that her absence
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supported a finding she “ignored” the seriousness of trial in a manner similar to how she
“Sgnored” Plaintiff. Counsel’s argument invited the jury to consider and find that Nurse Hanlon
was essentially a “bad person” for not attending every moment of every day of trial and this was
a character flaw scen in her care of Plaintiff. This argument was outrageous and the Court
rejected Nurse Hanlon’s counsel’s request for curative instruction. The circumstance was
particularly egregious as Nurse Hanlon’s counsel disclosed to the Court and counsel belore tial
commenced that the Nurse Defendants for personal reasons could not attend every day. Counsel
asked the Court ta excuse the parties as is customarily done, but the Court declined, offering
instead that the Court thought best not to draw attention to their absence. The Court surmised
that the jury would likely not notice an absence. No party indicated they would draw attention to
a party’s absence; clearly because it was not evidence and because it would be improper _
argument. Plaintiff counsel, however, abused the moment and spent considerable portion of his
closing argument instructing the jury to consider what counsel knew to be improper argument to
reach its verdict,
Counsel also argued to the jury on the matter of Plaintiff's Lowell General Hospital
medical record in evidence at trial what counsel knew to be falsehoods. During trial, ihe jury
heard evidence that the subject registration form, the only document that memorialized
Plaintiff's claim to anyone of a discolored foot, and upon which Plaintiff relied for his claims of
negligence on March 7*, was not part of the record made available, marked, and discussed at
each Defendant’s deposition. in response to this undisputed evidence, Plaintiff counsel in closing
told the jury, without basis or fair inference, the registration form was available to Nurse Hanlon
and others for deposition. This was nowhere in evidence and plainly outside of fair inference or
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argument. Counsel sought to mislead the jury and entice consideration of matters not in evidence
in a fabricated effort to cast Nurse Hanlon as untruthiul.
ARGUMENT
L Judgment Notwithstanding the Verdict
a. Standard of Review
The standard applied to a motion for judgment notwithstanding the verdict is well
established: “taking into account all the evidence in its aspect most favorable to the plaintiff, ...
whether, without weighing the credibility of the witnesses or otherwise considering the weight of
the evidence, the jury reasonably could return a verdict for the plaintiff.” Tosti Ayik,
v. 394 Mass.
482, 494 (1985), quoting Rubel v. Hayden. Harding
& Buchanan, Inc., 15 Mass.App.Ct. 252, 254
(1983). Further, “[t]he inferences to be drawn ftom the evidence must be based on probabilities
rather than possibilities and cannot be the result of mere speculation and conjecture.” McEvoy
Travel Bureau. Inc. Ms,
v. Norton Co. 408 Mass. 704, 706-707 n. 3 (1990), quoting McNamarav.
Honeyman, 406 Mass. 43, 45-46, 546 N.E.2d 139 (1989). Absent sufficient evidence of liability,
a motion for judgment notwithstanding the verdict should be allowed. Kelly v. Middlesex Corp.,
35 Mass. App. Ct. 30, 31, 35 (1993).
b. The verdict was not reasonable and was not supported by the evidence,
Even viewing the evidence in the light most favorable to the Plaintiff, it is clear the jury’s
verdict against Nurse Hanlon was not reasonable and not supported by the evidence, As noted
above, Plaintiff proffered opinions of Nurse Smith as to Nurse Hanlon’s alleged negligence that
resulted in Plaintiff's amputation. The evidence, however, was insufficient for'a jury to find
Nurse [Hanlon liable for Plaintiff's amputation as the mid-level providers had exclusive
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responsibility for Plaintiff's care decisions. To find Nurse Hanlon liable, the jury would need to
find her scope of practice on par with the mid-level providers. There was and could be no such
evidence at trial. Nurse Smith certainly offered no opinion Nurse Hanlon’s scope of practice
included diagnosing patients, ordering tests, consulting with physicians, or deciding on discharge
instruction. In fact, all testimony in the case distinguished Nurse Hanlon’s rolc from that of the
mid-level providers. Thus, for the jury to render a verdict against Nurse Hanlon required the jury
to employ conjecture and speculation as there was no information known to Nurse Hanlon that
‘was unknown to the mid-level providers and it was the mid-level providers that performed full
examination of the Plaintiff. Plaintiff presented no evidence and Plaintiff’s experts provided no
justification to hold Nurse Hanlon to the same or higher standard than the mid-level providers in
Plaintiff's care. To do so, as the, jury clearly did with its verdict, was contrary to the evidence and
standard of care applicable to Nurse Hanlon. Taken in its entirety, the testimony of Nurse Smith
(and Dr. Harris) established Nurse Hanlon’s involvement in Plaintiff's care did nothing to cither
misdirect or impact each mid-level provider's ability to render appropriate care to Plaintiff. See
Exhibit A.
All clinical signs and symptoms that Plaintiff raised as evidence and justification for a
different course of treatment for Plaintiff — that course being performance of an ultrasound or
referral to a physician for care or consultation —- were signs and symptoms known to the mid-
level providers based on their testimony about the examination of Plaintiff each conducted.
Moreover, it was undisputed that Nurse IIanlon’s scope of nursing practice prohibited her from
ordering an ultrasound or referring Plaintiff to a physician. Accordingly, had the jury been
instructed properly under a “but for” standard and had the jury considered only the evidence at
trial and not extraneous matters as raised in Plainti{T’s closing, the evidence was insufficient to
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satisfy Plaintiff's burden and, in fact, fully supported either a directed verdict or a jury finding in
Nurse [enlon’s favor. The outcome reached, therefore, must be reversed and judgment
notwithstanding verdict entered in Nurse Hanlon’s favor.
Further, the amount of the jury’s award was not supported by, indeed it was contrary to,
the evidence and demonstrates the jury did not contemplate the evidence presented to it, but
rather sought to banish Nurse Hanlon and the mid-level providers, No special damages were
presented to the jury. There was no evidence of medical bills, missed work, or other costs
incurred by Plaintiff. In the course of this litigation, Plaintiff admitted to his being disabled prior
to his amputation and leading a solitary and sedentary lifestyle. Plaintiff had no dependents and
acknowledged under his own counsel’s questioning that each year has seen. improvement in
adjustment to and enjoyment of daily activities. As explained below in Nurse Hanlon’s request
for a remittitur, none of the evidence presented by Plaintiff remotely warrants the amount of
money which this jury awarded. This is underscored by the jury awarding identical amounts for
past and future damages. The matching figures simply make no sense based on the evidence.
The excessive award granted by the jury unequivocally demonstrates punishment of Defendants
rather than compensation commensurate with the evidence.
Tl, Motion for New Trial
a. Standard of Review
In deciding a motion for new trial, the standard to be applied by a trial judge is whether the
verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed
themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons,
including misunderstanding of applicable law, failed to come to a reasonable conclusion. W.
Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). A judge may
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assess credibility and weigh conflicting evidence and may grant a new trial if satisfied that the jury
did not reach an honest and reasonable judgment in accordance with controlling principles of law.
Smith and Zobel, Rules Practice, 8 M.P.S. §59.3. A motion for new trial may also be granted if
(1) it is necessary to prevent a failure of justice, (2) an error occurred that affected the substantial
rights ofa party, 0) the verdict is against the weight of the evidence, (4) the damages are excessive,
and/or (5) the Court committed an error of law. Graci
v. Damon, 6 Mass. App. Ct. 160, 167 (1978);
Galvin_v.
Welsh Manufacturing Co.. 382 Mass. 340, 343 (1981); Tumpike Motors, Inc. v..
Newbury Group, Inc., 413 Mass. 119, 127 (1992); Bartley
v. Phillips, 317 Mass. 35, 40-44 (1944),
For the aforementioned reasons, Nurse [anlon’s motion should be allowed and the Court
should order a new trial.
b. Argument
The errors of law affected the substantial rights of Nurse Hanlon such that a new trial is
required to redress the error and prevent a failure of justice. Graci v. Damon, 6 Mass. App. Ct.
160, 167 (1978); Galvin ¥, Welsh
Manufacturing
Co., 382 Mass. 340, 343 (1981). In support of
its motion for a new trial, Nurse Hanlon incorporates by reference her argument in favor of the
motion for judgment notwithstanding the verdict as it relates to the jury verdict being against the
weight of the evidence and to prevent a failure of justice and state further as follows:
i. The verdict was against the weight of the evidence.
As outlined above, the facts and evidence introduced at trial do not support Plaintiff's
theory of liability presented through his experts. As such, the verdict and award issued by this
jury was not supported by the evidence and indeed was clearly against the weight of the
evidence. Moreover, the verdict against Nurse Hanlon can only be explained by the jury being
misled and being prejudiced against Nurse Hanlon. Further, the Court failed to admonish
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Plaintiff counsel for his closing argument and provide the necessary curative instruction to the
jury. As well, the Court instruction on causation given to the jury allowed the jury to assess
Nurse Hanlon’s potential liability on a much diluted and erroneous standard. To allow such a
verdict to stand would be a gross injustice to Nurse Hanlon and must be remedied with an order
for new trial.
ii. Plaintiff was permitted at trial to provide expert opinion appearing
nowhere in Plaintiff's expert disclosures.
The Court committed error in allowing undisclosed opinions of Plaintiff's experts that
affected the substantial rights of Nurse Hanlon, It is undisputed that Defendants filed pre-trial
motions to bar Plaintiff from offering undisclosed opinions. Notwithstanding Defendants’
motion and objection at trial to Plaintiff's offering previously undisclosed opinion, the Court in
an abuse of discretion and in error, allowed the undisclosed opinion to the prejudice of Nurse
Hanlon, More specifically, Plaintiff's expert Nurse Smith introduced the concept of the “5 P’s”
and inserted the concept into her opinions against Nurse Hanlon. The Court eeror severely
prejudiced Nurse Hanion as Plaintiff stressed and wholly relied on the opinions in his expert
testimony and, most prejudicial, his closing argument. The Superior Court cnacted Superior
Court Rule 30B which mandates that all testifying experts must certify their expert disclosures,
in part, so there will be no “surprise” or “ambush” tactics at trial, Contrary to applicable Court
Rules and Orders, the allowance of Plaintiff expert’s undisclosed opinion testimony served as
precisely the type of surprise and ambush that ought not occur at trial and constituted grave error
and prejudice to Nurse Hanton such that a new trial is warranted.
iii, Plaintiffs’ Closing Argument was inappropriate.
As noted above, Plaintiff counsel’s closing argument was improper and inflammatory as
it invited the jury to consider matters not in evidence and encouraged the jury to reach a verdict
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Docket Number 1881CV01287
on dislike of Nurse Hanlon rather than a weighing of and deliberation on the evidenee. The
prejudicial impact of this inappropriate closing argument was not properly addressed by the
Court, resulting in great prejudice to Nutse Hanlon, See Teller v. Schepens, 25 Mass. App. Ct.
346, 352 (1988). It is the trial judge’s duty to guard against improper argument. Evans v.
Multicon Const, Corp., 6 Mass. App. Ct, 291, 295 (1978) citing O’Neill
v. Ross, 250 Mass. 92,
96 (1924). The trial judge need not wait for opposing counsel’s objection before preventing the
unfair advantage that an improper argument seeks to obtain. Gath v. M/A-Com,
Inc, 440 Mass,
482, 495 (2003) (improper, unprofessional, argument should be cut short at the earliest
opportunity). Further, it is well within a trial judge’s discretion to award a new trial for such
improper conduct. Jd. Rigorous and emphatic action by the Court was required, but it was not
taken, Goldstein v. Gontarz, 364 Mass. 800, 811(1974); Harlow v. Chin, 405 Mass. 697, 703-
06(1989). The totality of Plaintiff's Counsel’s argument and the Court's failure lo properly
redress Counsel’s conduct warrants an order for a new trial,
The closing argument given by Plaintiff counsel was inappropriate, improper in multiple
respects, and violated well-defined Massachusetts law.! As stated by Judge Agnes, “... [itis
important to differentiate between remarks made by lawyers in closing arguments that are
improper because they infringe on a party’s rightto a fair trial or violate a standard of
professional conduct applicable to lawyers, and those that are simply hyperbole.” “An Ounce of
Prevention is Worth a Pound of Cure: A Collaborative Approach to Eliminate Closing
Arguments”, Massachusetts Law Review, Vol, 87, n.1 (2002). While difficult to determine in
some cases, it is important to distinguish between a crude or sarcastic remark that one might
si
' For an excellent discussion of closing arguments, please see Agnes, P., “An Ounce of Prevention is Worth a Pound
of Cure: A Collaborative Approach to Eliminate Closing Arguments”, Massachusetts Law Review, Vol. 87, 9.1
(2002).
16
Date Filed 1/16/2024 4:40 PM
‘Suppsier
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DoggepdhambeursMeyeedss
Docket Number 1681CV01287,
expect a jury to discount, and a comment that interferes with the jury’s ability 10 engage in a ‘fair
and calm consideration of the evidence’” Id. In this case, counsel's closing argument contained
the blatant effort to distract the jury from the evidence and weigh considerations that were
ouiside of the evidence to portray Nurse Hanlon as a bad person. It cannoi be disputed that
Plaintiff’ s closing argument of counsel violated the following well-established rules of closing
argument. First, counsel may only state and comment upon the evidence and any reasonable
inferences to be drawn from the evidence; and Second, counsel may only refer to facts that are in
evidence. The action of Plaintiff's counsel was intentional with counsel fully knowing he was
directing the jury to matters they were not to consider in an effort to distract from Plaintiff's
insufficient evidence; most notably, the evidence that Nurse Hanlon had no role in the care
decisions made by the mid-level providers. The only fair recourse for such intentional and
knowingly improper conduct is to grant Nurse Ilanlon a new trial on the grounds that counsel’s
closing argument infringed upon her right to a fair trial, and a “fair and calm consideration of the
evidence” by the jury. Counsel’s purposeful violations of well-establish Massachusetts law
adversely affected Nurse Hanlon’s right to a fair trial. ‘'o compound Plaintiff counsel's
violations, the Court declined to provide curative instruction, and the prejudicial effects remained
uncorrected. While the details of the jury’s deliberations remain unknown, it cannot be fairly
claimed thai this highly prejudicial, unfair, false and misleading argument did not impact the
jury’s d
Preview
Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 8.2 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS SUPERIOR COURT CIVIL ACTION NO: 2381cv02713 STEVEN LUPPOLD, Plaintiff, Vv. RECEIVED MEDICAL PROFESSIONAL MUTUAL 1/16/2024 INSURANCE COMPANY d/b/a COVERYS, LAWRENCE EDWARD OLLIVER, AND KATHY PFEIFER SPURLING Defendants AFFIDAVIT OF HARVEY NOSOWITZ I, Harvey Nosowitz, depose and state as follows: 1 1am an attorney duly licensed to practice in the Commonwealth of Massachusetts. | am one of the attorneys representing Medical Professional Mutual Insurance Company (MPMIC”), Lawrence Edward Olliver, and Kathleen Pfeifer Spurling in this action. Attached to this Affidavit as Exhibit A is a true and accurate copy of the Memorandum of Law of Defendant, Susan Hanlon, R.N., In Support of Her Motion for Judgment Notwithstanding the Verdict, To Set Aside the Verdict, and/or To Order a New Trial, And For Remittitur in Steven Luppold v. Carlos Flores, N.P., Charles Loucraft, P.A., Stefanie Busa, R.N., Susan Hanlon, R.N., Carla Crocker, R.N., and Merrimack Valley Emergency Associates Inc., Middlesex Superior Court Civil Action No. 1681¢v01287 (the “Underlying Suit”). #1308095 Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 Attached to this Affidavit as Exhibit B is a true and accurate copy of the docket for the Underlying Suit. Sworn under the pains and penalties of perjury this 4 iy of December, 2023 f ene et y on Haive y Nojowlz CERTIFICATE OF SERVICE, Thereby certify that on December I $5823, I caused a true copy of the above Affidavit to be served on counsel of record for each other party as follows: By email to counsel for Mr. Luppold to: and dose ; f pinandly one, a \A aA x i Harvey ys #1905095 Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 EXHIBIT A Date Filed 1/16/2024 4:40 PM ‘Supisiter Geurt PNiQCK SS PM Dor i SOtaMeaeA 3 79.1 Docket Number 1881CV01287 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT C.A. NO. 1681CV01287 STEVEN LUPPOLD,. Plaintiff, v RECEIVED CARLOS FLORES, NP., CHARLES LOUCRAFT, P.A., 4I712023 STEFANIE BUSA, R.N., SUSAN HANLON, R.N., AND CARLA CROCKER, RN., Defendants MEMORANDUM OF LAW OF DEFENDANT, SUSAN HANLON, R.N., IN SUPPORT OF HER MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, TO SET ASIDE THE VERDICT AND/OR TO ORDER A NEW TRIAL, AND FOR REMITTITUR NOW COMES the Defendant, Susan Hanlon, R.N. (“Nurse Hanlon”), by ker counsel, to request that this Honorable Court enter judgment for Nurse Hanlon notwithstanding the verdict rendered in this matter on March 24, 2023, pursuant to Rules 50 and 59 of the Massachusetts Rules of Civil Procedure, Nurse Hanlon states the requested judgment notwithstanding the verdict is necessary to prevent a failure of justice, as the verdict in this matter as against Nurse Hanlon was wholly and unquestionably against the weight of the evidence. In particular, Nurse Hanlon states Plaintiff's proffered evidence failed to establish his prima facie case for negligence and, further, the award of damages is grossly disproportional to the evidence submitted at trial. No reasonable jury could have returned a verdict for Plaintiff based on the evidence presented absent speculation, conjecture, being misled by improper argument, and confusion with the Court's erroneous instructions. As well, in light of Plaintiff's proffered evidence against Nurse JN Date Filed 1/16/2024 4:40 PM Bustle nau PMIGRBeREES PM n23OAMOZEAS Docket Number 1681CV01287 Hanlon, it is plainly clear the jury was swayed by dislike of Nurse Hanlon, which Plaintiff's counsel improperly invited and directed the jury to consider in reaching a verdict. Nurse Hanlon was denied a fair trial because of the inappropriate and misleading arguments made by Plaintiff's counsel in closing that knowingly invited the jury to consider matiers beyond evidence at trial and because of the lack of proper admonishment and instruction by the Court. Nurse Hanlon was also prejudiced by the trial Court’s inappropriate allowance of Plaintiff experts to opine on matters not disclosed for trial and the Courts denial of Nurse Hanlon’s counsel's request to examine Defendant, PA Loucrafl, to establish his clear bias and motivation for providing testimony against Nurse Hanlon in order to secure a so-called “high/lor agreement with Plaintiff as a guid pro quo that insulated PA !oucraft in the event of an adverse verdict. Nurse Hanlon, in the alternative, asks this Honorable Court to set aside the verdict as excessive and punitive and/or order a new trial in order to prevent a shocking failure of. justice. The Court instructed the jury improperly on the matter of Plaintiff"s burden relating to causation when it failed to instruct the jury correctly on “but-for” causation as required by Douil v. foster, 487 Mass. 1 (2021) and instead gave a muddled and misleading instruction that allowed the jury to consider whether Nurse [anlon was “a cause” of Plaintiff's injury rather than the requisite standard of the “but-for” cause. This dilution of the Plaintiff's burden considering the facts of this matter misled the jury and allowed for a verdict against Nurse Hanlon. Finally, Nurse Hanlon secks remittitur as the damages assessed were excessive and noi in keeping with the evidence presented at trial. In support of this motion, Nurse Hanlon states as follows: Date Filed 1/16/2024 4:40 PM Supertones 77 Nesdiasess pay Doak SRMO Ad S Docket Number 1681CV01287 Summary of Case ‘Trial of this matter commenced on Tuesday, March 7, 2023, with jury selection, and ended on March 24, 2023 with the jury’s verdict in Plaintiff's favor against Nurse Hanlon and the co-Defendants, PA Loucraft and NP Flores. The jury found in favor of Nurse Crocker and Nurse Busa. At the close of Plaintifl's case, Nurse Hanlon moved for a Sirected verdict and she renewed her motion for direcied verdict at the close of all evidence. The Court denied both motions. The jury awarded Plaintiff $10 million dollars for past damages and $10 million for future damages calculated over 33 years. Bused on the evidence at trial as discussed below, the verdict presents as a Punishment verdict and against the weight of the evidence. In short, this jury, upon whom the system places such great reliance, failed Nurse Hanlon. Tn this case, Plaintiff claimed the conduct of the Defendants in March 2015 following his presentment to the Lowell General Hospital (“LGH”) Emergency Department on two separate occasions (March 7 and March 13) caused delay in diagnosis of blood clots that diminished circulation to and perfusion of his left lower extremity. Plaintiff further asserted the alleged delay resulted in his left leg becoming unsalvageable such that it required amputation on March 18, 2015. He claimed amputation would have been unnecessary with an carlier diagnosis ai either of the subject LGH visits. The undisputed evidence at trial cstablished the co-Defendant providers, PA Loucraft and NP Flores (“mid-level providers”), were the sole Defendants qualified and credentialed to diagnose Plaintiff's complaints and/or order testing or other intervention to facilitate a diagnosis and provide treatment. Nurse Hanlon’s care was adjunct and secondary to the mid-level providers scope of practice as she had no ability to diagnose and/or treatment Plaintiff's condition. The conduct that Plaintiff claimed resulted in his amputation were unequivocally the Date Filed 1/16/2024 4:40 PM pups rou 7 Middiesess PM umbene 3 BAiGMozsd 3 Docket Number 1681CV01287 actions of the mid-level providers and not Nurse Hanlon. The evidence at trial concerning the respective roles of and attendant scope of practice of the Defendants made the Court’s instructions to the jury on Plaintitf’s burden on causation particularly critical. Nowhere in the evidence could the jury find “but-for” Nurse Hanlon’s conduct Plaintiff would not have required amputation of its leg. As noted, however, the Court failed to properly instruct the jury, which allowed jurors to weigh the evidence against Nurse Hanlon on a lesser and erroneous standard for causation. Despite the undisputed and exclusive role of the mid-level providers concerning Plaintiff's care and outcome, Plaintitf offered testimony from his purported nursing expert, Nurse Smith, opining on alleged breaches of the applicable standard of care by Nurse Hanlon, It was undisputed Nurse Hanlon encountered Plaintiff on three occasions. Nurse Hanlon performed the discharge of Plaintiff as ordered by PA Loucraft on March 7, 2015 and she assessed Plaintiff on March 13" and then performed his discharge that day per order of NP Flores. The evidence established no other involvement of Nurse Hanlon in Plaintiff’s care, nor did the evidence establish by direct or other evidence that Nurse Hanlon observed or had knowledge of any information regarding Plaintiff that was not known to or available to either of the mid-level providers. Quite simply, the evidence did establish Nurse Hanlon's conduct in no way influenced or affected either mid-level provider’s exclusive role and responsibility to Plaintiff's care decisions and outcome. A reasonable jury considering the evidence had no basis to find “but-for” Nurse Hanlon’s conduct the Plaintiff would not have required amputation of bis leg. The verdict against Nurse Hanlon, therefore, could only have resulted from the jury being swayed by improper influences or instruction. Date Filed 1/16/2024 4:40 PM Bias 4 WVRERSBx55 PM Docket Number 1681CV01287 Considering the testimony of Nurse Smith, the expert called by Plaintiffto offer standard of care testimony against Nurse Hanlon, her opinions failed to provide the jury sufficient evidence find Nurse Hanlon liable for Plaintiff's outcome as either the discharge nurse on both visit dates pr the attending on March 13", According to Nurse Hanlon’s role as attending on March 13", Nurse Smith opined that ‘Nurse Hanlon was responsible for assessment of the patient, asking for pain levels, notifying the provider about the patient’s presence (immediately if it is a potentially dangerous situation), to document her findings. A copy of Nurse Smith's excerpted trial testimony is attached hereto as Exhibit A. Nurse Hanlon did each and every one of the actions required by Nurse Smith’: testimony.iMorcover, the contemporaneous documentation of the mid-level providers recording their respective evaluations and cxamination of the Plaintiff revealed findings supportive of proper circulation and perfusion. The evidence supported Nurse Hanlon’s compliance with the standard of care as expressed by Plaintiff's nursing expert and for the jury to find negligence on this occasion is clearly contrary to the evidence. Nowhere in the evidence could the jury find a breach by Nurse Tlanlon on March 13" in her capacity as attending nurse More specifically, Nurse Smith testified that Nurse Hanlon ought to have examined Plaintiff and documented a nursing assessment at the time of the March 13" encounter, The evidence at trial, however, established Nurse Hanlon in fact performed and documented a i nursing assessment of Plaintiff on his second visit of March 13, 2015, approximatcly 10 minutes before NP Flores’ first of two encounters with the Plaintiff. This testimony was undisputed. Morcover, Nurse Hanlon noted Plaintiffs complaint of pain (foot) and pain level (4/10). It was also established at trial that if Nurse Ilanlon’s assessment revealed abnormal pulses/circulation — such would be documented. This testimony was also undisputed. Finally, Nurse Hanlon’s Date Filed 1/16/2024 4:40 PM Suppder Gea ty Atiddiesa 65 PM DockapahunbenASanGe2et3 Docket Number 1681CV01287 assessment was documented contemporaneous to her assessment and available for NP Flores, who saw Plaintiff 10 minutes after Nurse Hanlon — testimony also undisputed. Buurse Smith also offered testimony and opinions against Nurse Hanlon in her role 2s the discharge nurse for Plaintiff on both subject dates. To this end, Nurse Smith testified regarding the first discharge by Nurse Hanlon on March 7" that the Depart Summary included reference to the registration information wherein Plaintiff complained of lefi foot pain and turning purple and that Nurse Hanton did not report the complaint to PA Loucraft, The evidence, however, clearly established the information was available equally to both PA Loucraft and Nurse Hanlon. Indeed, Nurse Smith offered nothing more than acknowledgement the left foot pain and turing puple notation from registration was autopopulated to the Depart Summary. See ExhibitA. Nevertheless, Nurse Smith concluded Nurse Hanlon “functioned” below the standard of care as discharge nurse. In providing the conclusory statement, Nurse Smith providedno explanation or basis for her opinion. Nurse Smith offered no other standard of care opinion concerning Nurse Hanlon regarding events on March 7". Accordingly, this left consideration of Nurse Hanlon’s compliance or lack of compliance with the standard of care on March 7th entircly to the jury’s conjecture or speculation. Nurse Smith next testified regarding events on March 13" and acknowledged Nurse Hanlon assessed Plaintiff's foot pain for which he reported on a pain scale of 1-10, a score of 4, and that she discharged Plaintilf. Nurse Smith was asked to assume Nurse Hanlon did not document pulses and did not discuss the information known to both Nurse [snlon and NP Flores about Plaintiff's complaint of foot pain with the Nurse Practitioner. Ignoring the undisputed testimony and facts that Nurse Hanlon would document abnormal pulses if identified and NP Flores’ acknowledgement of the Depart Summary documentation — as well as NP Flores’ two Date Filed 1/16/2024 4:40 PM SuperierGeua 7MiutiorEss PM DogksteNomben2 3oiGuoagd 3 Docket Number 1681CV01287 assessments of Plaintiff afier Nurse Hanlon’s assessment —- Nurse Smith offered the opinion, without a basis, that the standard of care required Nurse [anion to evaluate pulses on discharge and evaluate Plaintiffs foot and ankle and leg “involving the 5 P’s.” As noted below, the introduction of testimony regarding “the 5 P’s” was never disclosed and was permitted over objection. Incredibly, this opinion of Nurse Smith ignored NP Flores’ documentation of circulation and examination of Plaintiff's foot and ankle. Nurse Smith also claimed without explanation the standard of care required “discussion with the provider,” but she did not elaborate on what the discussion would concern or why such discussion was warranted. Nurse Smith offered her opinions notwithstanding her agreement that NP Flores taoked at the Depart Summary and it was NP Flores with responsibility for Plaintiff's care. In fact, Nurse Smith and Plaintiffs causation expert, Dr. Harris, unequivocally agreed there was no information Nurse Hanlon possessed concerning Plaintiff that was not also known and available to cach of the mid- level providers on the respective dates of March 7 and March 13". As well, Dr. Harris agreed without hesitation that each of the mid-levels had more information about Plai nti ff than Nurse Hanlon since they each were responsible for examination, evaluation, and determining the care of Plaintiff. Excerpts of Dr. Harris’ testimony is attached as Exhibit B. Acceptance of Nurse Smith’s opinions rendered the verdict against Nurse Hanlon simply astounding and wholly against the weight of the evidence and supports fully that the jury based its verdict on matters outside of the evidence at trial. Regarding both of Nurse Ifanion’s encounters with Plaintiff, Plaintiff presented no evidence whatsoever for the jury to find that anything she did or did not do caused or contributed to cause injury to Plaintiff. Despite the absence of evidence, Nurse Smith offered the opinion Nurse Hanlon should have spoken with the mid-level providers when discharging Plaintiff, and Date Filed 1/16/2024 4:40 PM Suptatereud AMGkHese Es PM Dogkepeliombeud3arayieass 3 Docket Number 1681CV01287 she predicated the opinion on Nurse Hanlon having a concern about Plaintiff's condition. There was no evidence before the jury, however, that Nurse Hanlon had any concern for Plaintilf’s condition ai discharge or with either mid-level provider's assessment, evaluation, or diagnosis of Plaintiff that ‘warranted other action and Nurse Smith pointed to no such evidence. The overwhelming evidence at trial revealed Nurse Hanlon’s involvement in Plaintiff's care in no manner caused his left leg amputation and for the jury to find otherwise demonstrated a verdict soiled by conjecture, speculation, incorrect instruction, improper argument, and a dislike of Nurse Hanlon that outweighed the evidence at trial. There is no other explanation based on the evidence for the verdict against Nurse Hanlon and itis plainly against the weight of the evidence. Despite the weight of the evidence demonstrating each mid-level’s exclusive role in making care decisions for Plaintiff, PA Loucraft sought nevertheless to blame Nurse Hanlon. It was plainly evident PA Loucraft offered newly framed testimony motivated and targeted toward a finding against Nurse Hanlon as he gratuitously and repeatedly pointed to Nurse Hanlon having responsibility for Plainti{?’s oufcome on questioning from both his counsel and Plaintiff connsel. PA Loucraft's motivation and expressed bias warranted examination before the jury and Nurse Hanlon’s counsel sought to reveal PA Loucraft*s bias in and motivation for his testimony. Inexplicably, the Court denied Nurse Hanlon’s request to explore these matters on cross-, examination of PA Loucraft. It.was made clear on the record at sidebar that PA Loucraft proftered his blame of Nurse Hanlon in return for insulation from an adverse verdict by way of'a high/low agreement with Plaintiff, which was entered into after PA. Loucraft’s first day of testimony whereinhe admitted his liability for Plaintiff's amputation and sought io blame Nurse Hanlon as we!l for the outcome. As was explained to the Court at sidebar, the insurer for PA Date Filed 1/16/2024 4:40 PM ‘Supbsher eur AMBER S5 PM Dockepatiambon23 MiGMegex 3 Docket Number 1681CV01287, Loucraft’s could not honor its coverage terms for PA Loucraft for an adverse verdict due to ils financial standing that required rehabilitation. This situation rendered PA Loucraft exposed personally for an adverse verdict. With the prospect of insufficient coverage, PA Loucraft sought to implicate Nurse Ianlon in the event ofan adverse verdict in excess of his coverage for purposes of joint and several liability, in exchange for an executed high/low agreement that extinguished his personal exposure. As noted, in exror, the Court denied Nurse Hanlon the relevant and proper inquiry of PA Loucraft’s bias and motivation for offering new and damaging testimony against Nurse Hanlon. This exclusion of relevant and proper evidence proved exceptionally prejudicial to Nurse Hanlon and can in no manner be considered harmless error in light of the verdict. The testimony grossly misled the jury and was orchestrated among PA Loucraft, his counsel, and plaintiff's counsel. In response to the Plaintiff's limited and weak claims against Nurse Hanlon, Nurse Calder testified in full and unreserved support of Nurse Hanlon. Nurse Calder explained Nurse Hanlon’s role in Plaintiff's care and provided sound and specific bases for Nurse Hanlon’s compliance with the applicable standard of care. Nurse Calder’s testimony revealed and rendered the testimony of Nurse Smith bascless and contrary to the facts and evidence of the case. In light of Plaintiff’s insufficient evidence against Nurse Hanlon, his counsel set out in closing argument to distract the jury with claims and argument focused outside of the evidence. To this end, Plaintiffs counsel knowingly invited the jury to consider matters not in evidence. ‘This strategy was permitted by the Court without repercussion. On two matters Plaintiff’s counse] purposefully and in conscious betrayal of his responsibilities before the Court, directed the jury’s attcntion to what he know to be improper argument. First, counsel directed and implored the jury to consider Nurse Hanlon’s absence during trial and argued that her absence Date Filed 1/16/2024 4:40 PM ‘Suppeier Bruty Middiesos Pi Doce} 3 Docket Number 1681CV01287, supported a finding she “ignored” the seriousness of trial in a manner similar to how she “Sgnored” Plaintiff. Counsel’s argument invited the jury to consider and find that Nurse Hanlon was essentially a “bad person” for not attending every moment of every day of trial and this was a character flaw scen in her care of Plaintiff. This argument was outrageous and the Court rejected Nurse Hanlon’s counsel’s request for curative instruction. The circumstance was particularly egregious as Nurse Hanlon’s counsel disclosed to the Court and counsel belore tial commenced that the Nurse Defendants for personal reasons could not attend every day. Counsel asked the Court ta excuse the parties as is customarily done, but the Court declined, offering instead that the Court thought best not to draw attention to their absence. The Court surmised that the jury would likely not notice an absence. No party indicated they would draw attention to a party’s absence; clearly because it was not evidence and because it would be improper _ argument. Plaintiff counsel, however, abused the moment and spent considerable portion of his closing argument instructing the jury to consider what counsel knew to be improper argument to reach its verdict, Counsel also argued to the jury on the matter of Plaintiff's Lowell General Hospital medical record in evidence at trial what counsel knew to be falsehoods. During trial, ihe jury heard evidence that the subject registration form, the only document that memorialized Plaintiff's claim to anyone of a discolored foot, and upon which Plaintiff relied for his claims of negligence on March 7*, was not part of the record made available, marked, and discussed at each Defendant’s deposition. in response to this undisputed evidence, Plaintiff counsel in closing told the jury, without basis or fair inference, the registration form was available to Nurse Hanlon and others for deposition. This was nowhere in evidence and plainly outside of fair inference or 10 Date Filed 1/16/2024 4:40 PM Supeater evra Photos s5 PI Dodhetdviambend 3atiaMages 3 Docket Number 1681CV01287 argument. Counsel sought to mislead the jury and entice consideration of matters not in evidence in a fabricated effort to cast Nurse Hanlon as untruthiul. ARGUMENT L Judgment Notwithstanding the Verdict a. Standard of Review The standard applied to a motion for judgment notwithstanding the verdict is well established: “taking into account all the evidence in its aspect most favorable to the plaintiff, ... whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff.” Tosti Ayik, v. 394 Mass. 482, 494 (1985), quoting Rubel v. Hayden. Harding & Buchanan, Inc., 15 Mass.App.Ct. 252, 254 (1983). Further, “[t]he inferences to be drawn ftom the evidence must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture.” McEvoy Travel Bureau. Inc. Ms, v. Norton Co. 408 Mass. 704, 706-707 n. 3 (1990), quoting McNamarav. Honeyman, 406 Mass. 43, 45-46, 546 N.E.2d 139 (1989). Absent sufficient evidence of liability, a motion for judgment notwithstanding the verdict should be allowed. Kelly v. Middlesex Corp., 35 Mass. App. Ct. 30, 31, 35 (1993). b. The verdict was not reasonable and was not supported by the evidence, Even viewing the evidence in the light most favorable to the Plaintiff, it is clear the jury’s verdict against Nurse Hanlon was not reasonable and not supported by the evidence, As noted above, Plaintiff proffered opinions of Nurse Smith as to Nurse Hanlon’s alleged negligence that resulted in Plaintiff's amputation. The evidence, however, was insufficient for'a jury to find Nurse [Hanlon liable for Plaintiff's amputation as the mid-level providers had exclusive a1 Date Filed 1/16/2024 4:40 PM ‘Supiotiter Gieurt rAMiddte $2255 PM Dor GURZEL3- Docket Number 1681CV01287 responsibility for Plaintiff's care decisions. To find Nurse Hanlon liable, the jury would need to find her scope of practice on par with the mid-level providers. There was and could be no such evidence at trial. Nurse Smith certainly offered no opinion Nurse Hanlon’s scope of practice included diagnosing patients, ordering tests, consulting with physicians, or deciding on discharge instruction. In fact, all testimony in the case distinguished Nurse Hanlon’s rolc from that of the mid-level providers. Thus, for the jury to render a verdict against Nurse Hanlon required the jury to employ conjecture and speculation as there was no information known to Nurse Hanlon that ‘was unknown to the mid-level providers and it was the mid-level providers that performed full examination of the Plaintiff. Plaintiff presented no evidence and Plaintiff’s experts provided no justification to hold Nurse Hanlon to the same or higher standard than the mid-level providers in Plaintiff's care. To do so, as the, jury clearly did with its verdict, was contrary to the evidence and standard of care applicable to Nurse Hanlon. Taken in its entirety, the testimony of Nurse Smith (and Dr. Harris) established Nurse Hanlon’s involvement in Plaintiff's care did nothing to cither misdirect or impact each mid-level provider's ability to render appropriate care to Plaintiff. See Exhibit A. All clinical signs and symptoms that Plaintiff raised as evidence and justification for a different course of treatment for Plaintiff — that course being performance of an ultrasound or referral to a physician for care or consultation —- were signs and symptoms known to the mid- level providers based on their testimony about the examination of Plaintiff each conducted. Moreover, it was undisputed that Nurse IIanlon’s scope of nursing practice prohibited her from ordering an ultrasound or referring Plaintiff to a physician. Accordingly, had the jury been instructed properly under a “but for” standard and had the jury considered only the evidence at trial and not extraneous matters as raised in Plainti{T’s closing, the evidence was insufficient to 12 Date Filed 1/16/2024 4:40 PM Suppies Gur Middlesox6s PM Docke 43 Docket Number 1681CV01287 satisfy Plaintiff's burden and, in fact, fully supported either a directed verdict or a jury finding in Nurse [enlon’s favor. The outcome reached, therefore, must be reversed and judgment notwithstanding verdict entered in Nurse Hanlon’s favor. Further, the amount of the jury’s award was not supported by, indeed it was contrary to, the evidence and demonstrates the jury did not contemplate the evidence presented to it, but rather sought to banish Nurse Hanlon and the mid-level providers, No special damages were presented to the jury. There was no evidence of medical bills, missed work, or other costs incurred by Plaintiff. In the course of this litigation, Plaintiff admitted to his being disabled prior to his amputation and leading a solitary and sedentary lifestyle. Plaintiff had no dependents and acknowledged under his own counsel’s questioning that each year has seen. improvement in adjustment to and enjoyment of daily activities. As explained below in Nurse Hanlon’s request for a remittitur, none of the evidence presented by Plaintiff remotely warrants the amount of money which this jury awarded. This is underscored by the jury awarding identical amounts for past and future damages. The matching figures simply make no sense based on the evidence. The excessive award granted by the jury unequivocally demonstrates punishment of Defendants rather than compensation commensurate with the evidence. Tl, Motion for New Trial a. Standard of Review In deciding a motion for new trial, the standard to be applied by a trial judge is whether the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion. W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). A judge may 13 Date Filed 1/16/2024 4:40 PM Suppaier Gourd A MiGktione ss PM Docketaiembend 3aMeMaedd 3 Docket Number 1681CV01287 assess credibility and weigh conflicting evidence and may grant a new trial if satisfied that the jury did not reach an honest and reasonable judgment in accordance with controlling principles of law. Smith and Zobel, Rules Practice, 8 M.P.S. §59.3. A motion for new trial may also be granted if (1) it is necessary to prevent a failure of justice, (2) an error occurred that affected the substantial rights ofa party, 0) the verdict is against the weight of the evidence, (4) the damages are excessive, and/or (5) the Court committed an error of law. Graci v. Damon, 6 Mass. App. Ct. 160, 167 (1978); Galvin_v. Welsh Manufacturing Co.. 382 Mass. 340, 343 (1981); Tumpike Motors, Inc. v.. Newbury Group, Inc., 413 Mass. 119, 127 (1992); Bartley v. Phillips, 317 Mass. 35, 40-44 (1944), For the aforementioned reasons, Nurse [anlon’s motion should be allowed and the Court should order a new trial. b. Argument The errors of law affected the substantial rights of Nurse Hanlon such that a new trial is required to redress the error and prevent a failure of justice. Graci v. Damon, 6 Mass. App. Ct. 160, 167 (1978); Galvin ¥, Welsh Manufacturing Co., 382 Mass. 340, 343 (1981). In support of its motion for a new trial, Nurse Hanlon incorporates by reference her argument in favor of the motion for judgment notwithstanding the verdict as it relates to the jury verdict being against the weight of the evidence and to prevent a failure of justice and state further as follows: i. The verdict was against the weight of the evidence. As outlined above, the facts and evidence introduced at trial do not support Plaintiff's theory of liability presented through his experts. As such, the verdict and award issued by this jury was not supported by the evidence and indeed was clearly against the weight of the evidence. Moreover, the verdict against Nurse Hanlon can only be explained by the jury being misled and being prejudiced against Nurse Hanlon. Further, the Court failed to admonish 14 Date Filed 1/16/2024 4:40 PM Suppiier Rawr btiddiesess PM Dociapakunberuasan 3 Docket Number 1681CV01287, Plaintiff counsel for his closing argument and provide the necessary curative instruction to the jury. As well, the Court instruction on causation given to the jury allowed the jury to assess Nurse Hanlon’s potential liability on a much diluted and erroneous standard. To allow such a verdict to stand would be a gross injustice to Nurse Hanlon and must be remedied with an order for new trial. ii. Plaintiff was permitted at trial to provide expert opinion appearing nowhere in Plaintiff's expert disclosures. The Court committed error in allowing undisclosed opinions of Plaintiff's experts that affected the substantial rights of Nurse Hanlon, It is undisputed that Defendants filed pre-trial motions to bar Plaintiff from offering undisclosed opinions. Notwithstanding Defendants’ motion and objection at trial to Plaintiff's offering previously undisclosed opinion, the Court in an abuse of discretion and in error, allowed the undisclosed opinion to the prejudice of Nurse Hanlon, More specifically, Plaintiff's expert Nurse Smith introduced the concept of the “5 P’s” and inserted the concept into her opinions against Nurse Hanlon. The Court eeror severely prejudiced Nurse Hanion as Plaintiff stressed and wholly relied on the opinions in his expert testimony and, most prejudicial, his closing argument. The Superior Court cnacted Superior Court Rule 30B which mandates that all testifying experts must certify their expert disclosures, in part, so there will be no “surprise” or “ambush” tactics at trial, Contrary to applicable Court Rules and Orders, the allowance of Plaintiff expert’s undisclosed opinion testimony served as precisely the type of surprise and ambush that ought not occur at trial and constituted grave error and prejudice to Nurse Hanton such that a new trial is warranted. iii, Plaintiffs’ Closing Argument was inappropriate. As noted above, Plaintiff counsel’s closing argument was improper and inflammatory as it invited the jury to consider matters not in evidence and encouraged the jury to reach a verdict 15 Date Filed 1/16/2024 4:40 PM Surpiorsieys iidiselionm ss Pr 3QAQNRESN 3 Docket Number 1881CV01287 on dislike of Nurse Hanlon rather than a weighing of and deliberation on the evidenee. The prejudicial impact of this inappropriate closing argument was not properly addressed by the Court, resulting in great prejudice to Nutse Hanlon, See Teller v. Schepens, 25 Mass. App. Ct. 346, 352 (1988). It is the trial judge’s duty to guard against improper argument. Evans v. Multicon Const, Corp., 6 Mass. App. Ct, 291, 295 (1978) citing O’Neill v. Ross, 250 Mass. 92, 96 (1924). The trial judge need not wait for opposing counsel’s objection before preventing the unfair advantage that an improper argument seeks to obtain. Gath v. M/A-Com, Inc, 440 Mass, 482, 495 (2003) (improper, unprofessional, argument should be cut short at the earliest opportunity). Further, it is well within a trial judge’s discretion to award a new trial for such improper conduct. Jd. Rigorous and emphatic action by the Court was required, but it was not taken, Goldstein v. Gontarz, 364 Mass. 800, 811(1974); Harlow v. Chin, 405 Mass. 697, 703- 06(1989). The totality of Plaintiff's Counsel’s argument and the Court's failure lo properly redress Counsel’s conduct warrants an order for a new trial, The closing argument given by Plaintiff counsel was inappropriate, improper in multiple respects, and violated well-defined Massachusetts law.! As stated by Judge Agnes, “... [itis important to differentiate between remarks made by lawyers in closing arguments that are improper because they infringe on a party’s rightto a fair trial or violate a standard of professional conduct applicable to lawyers, and those that are simply hyperbole.” “An Ounce of Prevention is Worth a Pound of Cure: A Collaborative Approach to Eliminate Closing Arguments”, Massachusetts Law Review, Vol, 87, n.1 (2002). While difficult to determine in some cases, it is important to distinguish between a crude or sarcastic remark that one might si ' For an excellent discussion of closing arguments, please see Agnes, P., “An Ounce of Prevention is Worth a Pound of Cure: A Collaborative Approach to Eliminate Closing Arguments”, Massachusetts Law Review, Vol. 87, 9.1 (2002). 16 Date Filed 1/16/2024 4:40 PM ‘Suppsier Geurk Abistiepe ss PM DoggepdhambeursMeyeedss Docket Number 1681CV01287, expect a jury to discount, and a comment that interferes with the jury’s ability 10 engage in a ‘fair and calm consideration of the evidence’” Id. In this case, counsel's closing argument contained the blatant effort to distract the jury from the evidence and weigh considerations that were ouiside of the evidence to portray Nurse Hanlon as a bad person. It cannoi be disputed that Plaintiff’ s closing argument of counsel violated the following well-established rules of closing argument. First, counsel may only state and comment upon the evidence and any reasonable inferences to be drawn from the evidence; and Second, counsel may only refer to facts that are in evidence. The action of Plaintiff's counsel was intentional with counsel fully knowing he was directing the jury to matters they were not to consider in an effort to distract from Plaintiff's insufficient evidence; most notably, the evidence that Nurse Hanlon had no role in the care decisions made by the mid-level providers. The only fair recourse for such intentional and knowingly improper conduct is to grant Nurse Ilanlon a new trial on the grounds that counsel’s closing argument infringed upon her right to a fair trial, and a “fair and calm consideration of the evidence” by the jury. Counsel’s purposeful violations of well-establish Massachusetts law adversely affected Nurse Hanlon’s right to a fair trial. ‘'o compound Plaintiff counsel's violations, the Court declined to provide curative instruction, and the prejudicial effects remained uncorrected. While the details of the jury’s deliberations remain unknown, it cannot be fairly claimed thai this highly prejudicial, unfair, false and misleading argument did not impact the jury’s d