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Sullivan v. Connolly

Appeals Court of Massachusetts, Suffolk

February 17, 2017

KRISTEN SULLIVAN, administratrix, [1] & another [2]
v.
THOMAS CONNOLLY & another.[3]

          Heard: December 14, 2016.

         Civil action commenced in the Superior Court Department on March 18, 2010.

         The case was tried before Linda E. Giles, J., and a motion for new trial was considered by her.

          Benjamin R. Novotny for the plaintiffs.

          Brooks L. Glahn for the defendants.

          Present: Grainger, Sullivan, & Kinder, JJ.

          GRAINGER, J.

         A jury 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 new trial.

         After 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) .

         We 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.

         Missing 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.

         The 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 centimeters' dilation.

         However, 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 assumptions.

         The 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 ...


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