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Larkin v. Johnston

Superior Court of Massachusetts, Norfolk

October 15, 2015

Timothy Larkin, Individually and as Guardian and Next Friend of Andrea M. Larkin et al.
Jehane Johnston, M.D. et al No. 131862


Thomas A. Connors, Justice

This is a medical malpractice action brought by Timothy Larkin, individually and as guardian and next friend of Andrea M. Larkin, and in his capacity as father and next friend of Alexa Larkin (plaintiffs), against Jehane Johnston, M.D. and Dedham Medical Associates, Inc. (DMA or together with Johnston, defendants). On May 7, 2015, after a trial, a jury returned a verdict for the plaintiffs and awarded the following damages: $3.5 million for up-to-the present general damages, $9.4 million for future general damages, $4 million for past medical bills, $11 for future medical care, and $1.5 million for lost earning capacity.

Before the Court is the defendants' joint motion to reduce the jury award for damages in accordance with G.L.c. 231, § 60G.[1] At this juncture, however, the defendants only move " for leave to conduct limited discovery in order to clarify and establish payments made by collateral sources and for what period(s) of time, and a hearing to introduce evidence of the same." The Court heard oral argument on the motion on August 11, 2015, and now rules as follows.


The defendants' motion implicates the statutory scheme in Massachusetts that modifies the collateral source rule for medical malpractice actions. Specifically, pursuant to G.L.c. 231, § 60G(a), a defendant may, as here, move for a post-verdict hearing to offer evidence in regard to the amount of damages awarded a plaintiff for medical costs and expenses incurred prejudgment which the defendant claims were " replaced, compensated or indemnified" by a collateral source, such as health or disability insurance.[2] If any such awarded damages duplicate those collateral benefits, the statute requires the judge to " reduce the award by the amount of the benefits, less the amount the plaintiff paid to secure such benefits, through premiums and the like." Harlow v. Chin, 405 Mass. 697, 709-10, 545 N.E.2d 602 (1989); see G.L.c. 231, § 60G(b). By design, this scheme both " prevents double recovery by a plaintiff through litigation, " and " also protects the plaintiff from double loss of benefits by cancelling the rights of subrogation and perfections of lien previously held by the entities which provided these collateral benefits. G.L.c. 231, § 60G(c)." Harlow v. Chin, 405 Mass. at 710.

Though the motion before the Court is denominated as one to reduce the jury award, the only matter now in issue, as mentioned, is the defendants' request for discovery in connection with a hearing which they seek under G.L.c. 231, § 60G. In particular, as clarified in the reply memorandum, the defendants seek discovery for the " purpose of obtaining accurate and up-to-date figures on collateral source payments . . ."

The plaintiffs do not object to the discovery of collateral source payments as a general proposition, but disagree that the defendants may conduct such discovery at this point in the proceedings. The plaintiffs also dispute which of the itemized damages awards in this case is subject to reduction pursuant to G.L.c. 231, § 60G.

While none of the parties cites apposite appellate authority, there is good reason to conclude that the defendants are entitled to some post-trial discovery in connection with the evidentiary hearing provided for in G.L.c. 231, § 60G. As a recognized matter of Massachusetts practice, if, as here, a medical malpractice defendant cannot obtain a stipulation as to the amount of collateral source payments, the defendant may acquire evidence of such benefits " through pretrial or postjudgment discovery or from the sources themselves or by calling the plaintiff as a witness at the collateral source hearing" G. Jacobs & K. Laurence, Professional Malpractice, § 11.6 at 186 (2007) (footnotes omitted). That treatise's assertion finds support in Harlow v. Chin, which decision references that the defendants propounded interrogatories to the plaintiff postjudgment, as to collateral source compensation. 405 Mass. at 709.

Permitting post-trial discovery also effectuates the legislative purpose behind G.L.c. 231, § 60G. See Interstate Engr. Corp. v. Fitchburg, 367 Mass. 751, 757, 329 N.E.2d 128 (1975) (court must construe statute " so as to effectuate the purpose of the framers"); accord Industrial Finance Corp. v. State Tax Com., 367 Mass. 360, 364, 326 N.E.2d 1 (1975), quoting from Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). The statute plainly contemplates post-trial proceedings concerning collateral source benefits, and, further, that such an evidentiary inquiry would only occur in the event of a verdict for the plaintiff. See G.L.c. 231, § 60G; cf. H.J. Alperin, Summary of Basic Law, § 17.167, at 974 n.7 (4th ed. 2006) (" Since the evidence is presented following a jury's verdict or the court's finding for the plaintiff, it would appear that evidence of payment of benefits from collateral sources may not be introduced at trial"). It would be inconsistent with this legislative intention, and illogical and unrealistic in practice, to place the burden on the defendant to conduct pre-trial discovery on that issue contingent on the trial outcome, or otherwise to have forfeited the right to address the matter in its appropriate post-trial context.[3]

Although, for these reasons, the defendants are permitted post-trial discovery, such discovery will be limited in scope. First, the defendants may conduct discovery only to obtain evidence of the medical care expenses specified by G.L.c. 231, § 60G, and not, for instance, the general damages which the jury awarded the plaintiffs. Second, in conformity with the language of § 60G, discovery is limited to damages " incurred prior to the judgment" and, thus, not damages incurred postjudgment for future medical care costs and expenses. Third, the defendants may not conduct discovery into non-institutional, voluntary contributions the plaintiffs may have received, such as from family. See G.L.c. 231, § 60G (excepting " gratuitous payments or gifts, " as well as workers' compensation benefits, from collateral source benefits).


For the foregoing reasons, it is hereby ORDERED that the defendants' Motion to Reduce Jury Award for Damages be ALLOWED to the extent that the defendants may conduct ...

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