Heard: November 9, 2018.
action commenced in the Superior Court Department on March
case was tried before Paul D. Wilson, J., and a motion for a
new trial, filed on November 19, 2015, was heard by him.
Patricia A. DeJuneas (Robert J. Cordy also present) for the
A. Aronsson for the defendants.
Present: Rubin, Maldonado, & Lemire, JJ.
a four-week jury trial, a verdict was returned in favor of
the plaintiff in this case, which arose when she was raped in
a parking garage owned and operated by the defendants. An
employee of the defendants had been raped in the same parking
garage by the same man less than two weeks prior to the rape
that forms the basis of this lawsuit. The jury concluded,
among other things, that the defendants had failed to take
due care to protect the plaintiff, who was a customer of the
garage walking back to her car in the early morning hours of
May 1, 2009, after completing her work as a lighting
technician at a nearby nightclub in downtown Boston.
defendants filed a postjudgment motion for a new trial. In a
detailed opinion, the trial judge concluded that there was
misconduct of plaintiff's counsel before the jury during
trial that was not remedied by the judge's curative
instructions. The details of what the judge found amounted to
misconduct will be spelled out infra in our
discussion. The judge painstakingly examined the events at
trial. In assessing the motion, he applied, as the defendants
urged, the four-factor framework for considering claims of
prejudicial attorney misconduct that we articulated in
Fyffe v. Massachusetts Bay Transp.
Auth., 86 Mass.App.Ct. 457, 472 (2014). Critically the
fourth factor articulated in Fyffe was "whether
the error, in the circumstances, possibly made a difference
in the jury's conclusion." Id.., quoting
Commonwealth v. Lewis, 465 Mass.
119, 130-131 (2013). Applying this test to each of four
incidents of what the judge concluded was attorney
misconduct, and ultimately "with great regret," he
allowed the motion for a new trial.'
standard applied by the judge in assessing the motion for a
new trial was the wrong standard. Consequently, the order
allowing the motion for a new trial was in error. Although a
remand for application of the proper standard by the judge
who was present during trial would ordinarily be the
appropriate disposition of a case such as this, there is in
the trial court a pending motion for disqualification of the
trial judge in this case. As we explain in part 2 of our
opinion, we have concluded the most prudent course,
therefore, is to stay the appeal to allow the judge to rule
upon the plaintiff's pending motion for his
disqualification. Since we are in as good a position as any
judge who did not sit on the trial to assess the merits of
the new trial motion, this procedure will allow us to
determine whether a remand for reconsideration under the
proper standard is preferable to our simply reaching the
merits ourselves. First, though, we turn to the appropriate
standard for a trial judge's evaluation in a civil case
of a posttrial motion for a new trial, something about which
some confusion has arisen in the trial courts, as exemplified
by the instant case.
New trial standard.
standard a judge should apply in determining whether to allow
a motion for a new trial in a civil case under Mass. R. Civ.
P. 59 (a), 365 Mass. 827 (1974), even one based on alleged
attorney misconduct, is relatively high. To begin with, if
the motion is based upon claims of error that were, or could
have been, brought prior to verdict, the judge need not even
hear the motion. See Lonergan v.
American Ry. Express Co., 250 Mass. 30, 38 (1924).
If, in the judge's discretion, he or she does reach the
merits, the standard is the one we articulated in
Evans v. Multicon Constr. Corp., 6
Mass.App.Ct. 291, 295 (1978): "the judge should not take
it upon [herself or] himself to nullify a jury's verdict
by granting a new trial unless it appears on a survey of the
whole case that otherwise a miscarriage of justice would
reasons this standard is used should be clear. Trial has
already been held, and a judgment has entered. Under our
adversary system, the losing party has been free during trial
to make before the trial judge whatever objections the party
thought were appropriate. The judge has already had a chance
to rule on these objections. Where he or she has sustained
objections, and, where appropriate, has had an opportunity to
attempt to cure errors that have taken place, the objecting
party has also had an opportunity to object to the adequacy
of those curative measures, or even to seek a mistrial. The
losing party thus has had a full bite of the trial court
apple. And, under our system, that party is now entitled to a
full bite of the appellate court apple.
filing a motion for a new trial in the trial court on the
basis of trial error, then, the losing party seeks a second
bite at the trial court apple. And, in order to ensure
justice is done, he or she may, at the judge's
discretion, be given it. But it is in this light that the
standard for allowance of a motion for a new trial can be
best understood. It is by no means an impossibly high burden
that is placed on the losing party, and motions for new trial
are with regularity appropriately allowed by our trial court
judges. But the new trial motion is not a mechanism for
addressing individual errors at trial. It is an opportunity
to allow the judge to take "a survey of the whole
case" to ensure that "a miscarriage of
justice" has not occurred. Evans, 6
Mass.App.Ct. at 295.
contrast, Fyffe did not articulate a standard to be
utilized by trial judges in evaluating motions for a new
trial. Rather, it explicated an appellate standard of review,
the prejudicial error standard. Fyffe involved two
consolidated appeals, one from the denial of a motion for a
new trial and one from the underlying judgment.
Fyffe, 86 Mass.App.Ct. at 459. As we explained,
although our review of the denial of the motion for a new
trial is limited to determining whether there was an abuse of
discretion, a very difficult standard for a complaining party
to meet, a less deferential standard is applicable when a
party on direct appeal seeks reversal and a new trial. See
id. at 470-471. In that circumstance, in a civil
case we apply to preserved claims of error the well-known
"prejudicial error" standard of review.
Id.. at 472. Under that standard, if there has been
an error, we will reverse and, where appropriate, order a new
trial unless we can "say with substantial confidence
that the error would not have made a material
difference." DeJesus v. Yogel, 404 Mass. 44, 49
(1989). Put another way, in the face of error, an appellant
can obtain a new trial unless the error is
"harmless." Comeauv.Currier, 35 Mass.App.Ct. 109, 112
(1993). And it is this standard that the
defendants here asked the judge to apply, arguing in reliance