Heard: May 4, 2018.
action commenced in the Superior Court Department on June 17,
case was tried before Thomas A. Connors, J., and posttrial
motions were heard by him.
Douglas Howard-Driemeier (Joshua E. Goldstein also present)
for the defendant.
R. Satin (Benjamin R. Novotny also present) for the
J. Barter, for Professional Liability Foundation, Ltd.,
amicus curiae, submitted a brief.
Present: Meade, Maldonado, & Shin, JJ.
a trial, a jury returned a verdict for Timothy Larkin, who
brought this medical malpractice suit individually and on
behalf of his wife, Andrea Larkin,  and his daughter, Alexa
Larkin (collectively, plaintiffs, or Larkin). The jury
awarded damages in the sum of $35.4 million, which a judge of
the Superior Court later reduced to approximately $32.5
million on the motion of the defendant, Dedham Medical
Associates (DMA). On appeal, DMA claims the judge made
erroneous rulings on its posttrial motions. We
unfortunate facts of this case are not disputed in this
appeal. Andrea, a former elementary school teacher, exercise
class instructor, and marathon runner, complained of
persistent dizziness beginning in 2004. She underwent a
magnetic resonance imaging procedure at Massachusetts General
Hospital (MGH), which revealed a venous varix in her brain
that was determined not to be a cause of her dizziness
symptoms. Her primary care doctor, Jehane Johnston, an
employee of DMA, was copied on the MGH report, but failed to
note the venous varix on Andrea's "problem
list," which is designed to alert a patient's
various treating physicians to her medical conditions. As a
result, when Andrea became pregnant in 2007, her
obstetricians were not informed about her venous abnormality.
Andrea was not informed that this condition posed a
particular risk of the venous varix rupturing during vaginal
labor using the Valsalva maneuver or that an elective
Caesarian section would avoid placing additional stress on
the veins in her head and neck. Andrea delivered her
daughter vaginally using the Valsalva maneuver in June of
hours after Andrea delivered her baby, she experienced a
sudden, very painful headache, which accompanied a rupture of
the venous varix in her brain. After having emergency surgery
to remove a part of her skull and falling into a month-long
coma, Andrea awoke to find that her legs and left hand were
paralyzed, her trunk muscles were impaired, and that she had
difficulty chewing, swallowing, and speaking. Despite having
physical therapy twice per week, the occasional occupational,
water, and speech therapies, and a "battery" of
daily medications, Andrea's injuries are permanent. She
requires care around the clock and likely will for the
duration of her lifetime.
filed this suit against DMA and Dr. Johnston. A two-week long
trial commenced on April 27, 2015. The jury rendered a
verdict in favor of Larkin and awarded $35.4
million.DMA filed a series of posttrial motions
for judgment notwithstanding the verdict, for a new trial
and/or remittitur, to amend the pleadings to conform to the
evidence, and to alter or amend the judgment, challenging the
verdict and the jury award, alleging, among other things, (1)
that it was entitled to the benefit of the statutory
limitation on tort liability afforded to certain charitable
organizations pursuant to G. L. c. 231, § 85K, as then
in effect, (2) that testimony provided by Larkin's expert
improperly exceeded the bounds of the parties' joint
pretrial memorandum, (3) that Larkin entered into an
impermissible contingent fee arrangement for consulting
services, and (4) that Larkin's counsel misrepresented
the amount of Andrea's past medical bills, causing an
"anchoring" effect that inflated the jury award.
The judge denied the majority of these motions, but reduced
the jury's award in part to adjust for an error in the
calculation of Andrea's past medical bills.
General Laws c. 231, § 85K.
first argues that the judge erred in denying its motion to
amend the pleadings to conform to evidence of its charitable
status pursuant to Mass.R.Civ.P. 15(a) and (b), 365 Mass. 761
(1974). It also alleges error in the judge's denial of
its motion to alter or amend the judgment pursuant to
Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), to conform to the
statutory cap on liability as provided in G. L. c. 231,
§ 85K, as then in effect, which limited the liability of
certain charitable organizations to $20, 000. For
substantially the same reasons listed in the judge's
thoughtful and comprehensive memorandum and order denying
DMA's motions, we disagree.
Statutory limitation on liability.
statutory limit set forth in § 85K is an affirmative
defense that must be pleaded and proved by the entity seeking
to utilize it. See Keene v. Brigham & Women's
Hosp., Inc., 439 Mass. 223, 238-239 (2003).
"Although technically a limitation on liability, the
charitable cap set forth in § 85K has been treated as an
affirmative defense that must be pleaded under Mass.R.Civ.P.
8 (c), 365 Mass. 749 (1974) (listing specific affirmative
defenses, and concluding with the residuary clause 'any
other matter constituting an avoidance or affirmative
defense')." Ibid., citing Harlow v.
Chin, 405 Mass. 697, 715 (1989). It is undisputed that
DMA did not plead the statutory cap as an affirmative defense
in its answer. ...