The plaintiff, the daughter and executrix of the estate of the Roland J. Dymon, filed an action in the Superior Court alleging negligence against the defendant, Matthew J. Kane,4 who was Dymon's primary care physician. Following an eight-day trial, a jury returned a verdict in favor of the defendants and judgment entered accordingly. The plaintiff filed a motion for new trial, which the trial judge denied in a written memorandum and decision. The plaintiff now appeals from the judgment and the order denying the motion for a new trial, claiming that the jury verdict was based on improperly proffered evidence, and was "markedly against the overwhelming, undisputed evidence." We affirm.
Background. The case centered on the plaintiff's claim that the defendants' negligent care and treatment of Dymon resulted in Dymon's death. More specifically, the plaintiff alleged that Kane
"substantially contributed to cause or failed to prevent Dymon's death from statin-induced rhabdomyolysis on July 13, 2008 ... which was caused by a combination of medications prescribed by Kane and by his failure to diagnose, monitor, and follow Dymon's blood test results, conditions, and symptoms from March 31, 2008 through July 1, 2008."
The evidence at trial included the admission of several exhibits and comprehensive expert testimony proffered and challenged by both parties. The parties are intimately familiar with the facts of the case, which need not be repeated here.
Discussion. The primary issue raised on appeal concerns the allegation that the jury were misled by the defendants' interjection of a fact not in evidence, particularly in the context of the defendants' cross-examination of the plaintiff's expert witness. On cross-examination, the expert was asked to assume that a follow-up to Dymon's March 31, 2008, appointment had been scheduled for April 16, 2008. He was then asked whether that would have been an "appropriate interval" for a follow-up on Dymon's March 31 lab work.5 The plaintiff objected to the line of questioning, but the judge permitted it de bene.6
In the motion for new trial, the plaintiff asserted that the defense misled the jury by "repeatedly pretend[ing]" that the April 16 appointment was scheduled as "an early follow up" to the March 31 appointment, and that it was cancelled by Dymon. The judge disagreed. In her order denying the motion for new trial,7 she pointed to evidence, including a computer "screenshot" and testimony from the defendants' receptionist, which reflected that the April 16 appointment was "scheduled to occur and was cancelled by Mr. Dym[o]n or someone on his behalf."8
On appeal, the plaintiff avers that the April 16 appointment was booked on February 1, that it was only later cancelled because Dymon had moved the appointment up to March 31 as a result of his deteriorating condition, and that the unrebutted evidence at trial supported this explanation. Thus, she contends that the judge erred in denying the motion for new trial, because no reasonable jury could have found that the April 16 appointment was a "follow up" cancelled by Dymon or someone on his behalf.
The decision on a motion for a new trial in a civil case "rests in the discretion of the trial judge, ... who is instructed to set aside a verdict if 'in [her] judgment it is so greatly against the weight of the evidence [to suggest] that it was the product of bias, misapprehension or prejudice.' " Jamgochian v. Dierker, 425 Mass. 565, 571 (1997), quoting from Scannell v. Boston Elevated Ry., 208 Mass. 513, 514 (1911). For the reasons stated below, the judge did not abuse her discretion in denying the motion for new trial.
We first note that the plaintiff did not move to strike the testimony that had been admitted de bene. See note 5, supra. Accordingly, that evidence was admitted for substantive purposes and was fair game for the jury to consider, and any evidentiary basis for the objection was waived. See Wilborg v. Denzell, 359 Mass. 279, 283 (1971).
Second, even assuming that the issue was properly preserved, the judge did not abuse her discretion in denying the motion. The receptionist's testimony and the screenshot provided evidence that supported the judge's finding that an appointment had been made and cancelled by Dymon or someone acting on his behalf. Moreover, even further assuming that the evidence would not support such a finding, we still discern no abuse of discretion because any risk of jury confusion on this point was thoroughly mitigated. The plaintiff's expert witness unequivocally rejected the premise to defense counsel's questions that are now challenged on appeal. Indeed, the expert witness's answers clarified for the jury that there was no evidence that any follow-up appointment (and any proposed treatment at such appointment) had ever been part of the defendants' treatment plan for Dymon. See note 5, supra. Furthermore, the plaintiff's effective cross-examination of the receptionist and effective closing argument explained the dates on which the appointments had been made, and clarified that the existence or nonexistence of any follow-up appointment was not a material issue at trial. As a result, the judge properly denied the motion for new trial.9 ,10
Judgment affirmed.
Order denying motion for new trial affirmed.