Sullivan, et al. v. Connolly, et al. (Lawyers Weekly No. 11-012-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1563 Appeals Court KRISTEN SULLIVAN, administratrix,[1] & another[2] vs. THOMAS CONNOLLY & another.[3] No. 15-P-1563. Suffolk. December 14, 2016. – February 17, 2017. Present: Grainger, Sullivan, & Kinder, JJ. Negligence, Medical malpractice, Wrongful death, Spoliation of evidence. Wrongful Death. Minor, Wrongful death. Practice, Civil, Wrongful death, Instructions to jury, Opening statement, New trial, Bias of judge. 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. 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 […]