Fyffe v. Massachusetts Bay Transportation Authority, et al. (Lawyers Weekly No. 11-129-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   13-P-186                                         Appeals Court   COLLEEN FYFFE  vs.  MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.[1] No. 13-P-186. Suffolk.     January 14, 2014. – October 6, 2014.   Present: Trainor, Graham, & Agnes, JJ.   Massachusetts Bay Transportation Authority.  Practice, Civil, Argument by counsel, Conduct of counsel, Opening statement, Instructions to jury, New trial.  Damages, Remittitur.       Civil action commenced in the Superior Court Department on May 11, 2010.   The case was tried before Judith Fabricant, J., and a motion for a new trial or remittitur was heard by her.     John J. Bonistalli (Jonathan P. Feltner with him) for the defendants. Thomas R. Murphy for the plaintiff.     AGNES, J.  As we explain in detail below, this is a case where, contrary to established law and the trial judge’s numerous cautions and rulings, plaintiff’s experienced trial counsel[2] improperly argued (1) facts that were not in evidence, (2) concepts of liability, despite the parties’ stipulation that the only triable issues related to damages, and (3) that the jury were the conscience of the community and had a duty in this case to safeguard users of public transportation in the future.  Plaintiff’s counsel also wilfully disregarded the judge’s explicit rulings on a number of issues and, by defiantly challenging her rulings in front of the jury, undermined her attempts to remedy his misconduct.  As a result of these numerous transgressions by plaintiff’s trial counsel, the judge was required to “conduct[] the trial under severe and exasperating handicaps.”  Stavisky v. Slotnik, 19 Mass. App. Ct. 1028, 1030 (1985).  Mindful of the deference we owe the judge’s determination on a motion for a new trial whether such errors were prejudicial, in this case our review of the record of this very brief trial (two full days of testimony) persuades us that the errors committed by plaintiff’s counsel, considered in their totality, “injuriously affected the substantial rights” of the defendants and deprived them of a fair trial.  G. L. c. 231, §§ 119, 132.  Accordingly, despite the judge’s commendable patience, we vacate the judgment and remand for a new trial. Procedural background.  The plaintiff Colleen Fyffe was injured on May 8, 2009, when the Massachusetts Bay Transportation Authority (MBTA) trolley in which she was riding struck another trolley on the MBTA’s Green Line in Boston.  She filed suit in Superior Court against the MBTA and […]

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