Heard: February 7, 2019.
action commenced in the Superior Court Department on March
31, 2015. The case was tried before Heidi E. Brieger, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Patrick T. Jones (Richard W. Paterniti also present) for the
H. Sullivan (Rebecca A. Cobbs also present) for the
following submitted briefs for amici curiae:
J. Carey, Jr., for Mark S. Brodin & another.
Sanguinetti, of California, Jeffrey R. White, of Connecticut,
Amy Brogioli, of Illinois, Thomas R. Murphy, Kevin J. Powers,
& Elizabeth N. Mulvey for American Association for
Justice & another.
P. Brouillard & Emily A. Chadbourne for Massachusetts
Defense Lawyers Association.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
medical malpractice action for injuries arising after
surgery, judgment entered for the defendant following a jury
trial. Central to the plaintiffs' appeal are out-of-court
statements made by a medical student who participated in the
surgery. The trial judge held that the statements could not
be entered in evidence as statements of a party opponent made
by an agent, and on a motion for reconsideration also
determined that those statements were inadmissible as
statements against interest by an unavailable declarant.
While we conclude that there was no error in the judge's
decision under our current law of evidence, we take this
opportunity to adopt as a matter of common law Proposed Mass.
R. Evid. 804(a)(3) (1980), which would allow a declarant, in
a civil case, to be deemed unavailable if he or she testifies
to a lack of memory about the subject matter in
question.,  On this record, if the judge had had the
benefit of the grounds for finding unavailability that we
adopt in this opinion, it would have been an abuse of
discretion for the judge not to have determined that the
declarant was unavailable and that his statements were
against his pecuniary interest. Because that testimony is
particularly relevant to the cause of the defendant's
injuries, and could be considered relevant to the question of
duty of care, its absence is grounds for a new trial. As we
have determined that the statements should have been admitted
in evidence as statements against interest by an unavailable
witness, we need not determine whether they also could have
been admitted as statements by the agent of a party opponent.
The jury's verdict is vacated, and the case is remanded
to the Superior Court for a new trial consistent with this
16, 2012, the plaintiff Leslie Hedbergunderwent a
vaginal hysterectomy performed by the defendant. The
defendant was assisted by a third-year resident and a
third-year medical student, Davis Stephen. The surgery
required that Leslie be in the dorsal lithotomy position,
lying on her back with her legs in stirrups, her hips and
knees flexed, and her thighs apart. The surgery lasted
approximately three hours and forty-five minutes, and
afterward Leslie almost immediately complained of pain,
numbness, and tingling in her left leg and foot. After a
neurology consultation, her ...