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Hedberg v. Wakamatsu

Supreme Judicial Court of Massachusetts, Suffolk

July 11, 2019

LESLIE HEDBERG & another
v.
MAY WAKAMATSU.

          Heard: February 7, 2019.[1]

         Civil action commenced in the Superior Court Department on March 31, 2015. The case was tried before Heidi E. Brieger, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Patrick T. Jones (Richard W. Paterniti also present) for the plaintiffs.

          Brian H. Sullivan (Rebecca A. Cobbs also present) for the defendant.

          The following submitted briefs for amici curiae:

          Thomas J. Carey, Jr., for Mark S. Brodin & another.

          Elise 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.

          Chad P. Brouillard & Emily A. Chadbourne for Massachusetts Defense Lawyers Association.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LOWY, J.

         In this 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.[2], [3] 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 opinion.[4]

         Background.

         On May 16, 2012, the plaintiff Leslie Hedberg[5]underwent a vaginal hysterectomy performed by the defendant. The defendant was assisted by a third-year resident and a third-year medical student, Davis Stephen.[6] 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 ...


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