Heard: December 14, 2016.
action commenced in the Superior Court Department on
March 18, 2010.
case was tried before Linda E. Giles, J., and a
motion for new trial was considered by her.
Benjamin R. Novotny for the plaintiffs.
L. Glahn for the defendants.
Present: Grainger, Sullivan, & Kinder, JJ.
in the Superior Court returned a defendants' verdict in
this medical malpractice suit and wrongful death action
resulting from the death of an infant within three days of
birth. The plaintiffs appeal, asserting claims of error in
the judge's evidentiary rulings, in her instructions to
the jury and, in a more disturbing allegation, accusing the
judge of persistent favoritism and biased conduct requiring a
careful review of both the record appendix and the trial
transcript in their entirety, we affirm the judgment.
Moreover, for the reasons set forth below, we conclude that
the allegations of judicial bias in the plaintiffs'
motion for a new trial are unfounded, and that they exemplify
pleading material appropriate for a motion to strike as set
forth in Mass.R.Civ.P. 12(f), 365 Mass. 754 (1974) .
address the plaintiffs' claims in the order briefed on
appeal, noting that the claims of error are intertwined with
the assertion of judicial bias. We refer to the factual
assertions of the parties as they relate to the issues; the
underlying facts are generally undisputed.
witness instruction. 1. Adverse inference. A
central issue at trial related to fetal heart rate tracings.
These tracings are electronically monitored to ensure that a
fetus maintains a minimally healthy heart rate before and
during delivery. The plaintiffs asserted that the defendants
were negligent by failing to monitor the decedent's
tracings with appropriate care, failing to recognize that the
tracings signaled an unacceptably slow (nonreassuring) heart
rate and, consequently, failing to perform an urgently
required cesarean section in a timely manner. The defendants
asserted that the tracings indicated a reassuring heart rate,
and that a cesarean section was performed at the appropriate
point in time during delivery when the mother's dilation
failed to progress beyond nine centimeters.
original contemporaneous paper records of the fetal heart
rate tracings were unable to be found. While copies of the
tracings were available and introduced in evidence, these did
not contain any handwritten notations that the defendants
might have made on the original paper strips. Chart notations
made during delivery and at the time that the cesarean
section was initiated supported the defendants' position
that the cesarean section was performed because the
mother's labor had failed to progress beyond nine
chart notations entered later, by postdelivery care
providers, referred to nonreassuring fetal heart rate
tracings as the reason for the cesarean section. The
defendants argued that these postdelivery notations either
were made on the basis of unfounded assumptions derived by
reasoning in reverse, i.e., assuming that the tracings were
nonreassuring because the infant was born in an essentially
lifeless state, or were, at least in part, the result of
parroting previous entries based on such unfounded
plaintiffs introduced the later chart notations by
postdelivery providers in presenting their case, but did not
call as witnesses any of the postdelivery providers who had
made the notations. The defendants' motion for a missing
witness instruction was denied. See Mass. G. Evid. §
1111 (2016). The plaintiffs, however, assert on appeal that
the judge committed error in allowing the defendants to argue
to the jury that the plaintiffs presented no evidence that
any postdelivery care ...