Fire fighter commenced personal injury action
against fire engine manufacturer, alleging that manufacturer breached
warranties in design and sale of fire engine. The Superior Court
Department, Norfolk County, John P. Sullivan, J., entered judgment in
favor of fire fighter, and both fire fighter and manufacturer appealed.
The Appeals Court, Smith, J., held that trial court abused its
discretion in imposing time limits on all witnesses' testimony.
Vacated and remanded for new trial.
John N. Lewis, Boston
(Jeffrey N.
Roy, with him), for plaintiffs.
Peter L. Puciloski,
Boston, for defendant.
Before
KASS,
SMITH and
PORADA, JJ.
SMITH, Justice.
Carleton Chandler, a call fire fighter, suffered injuries when he
slipped and fell from a fire engine as he climbed up its side during
routine servicing. The fire engine was manufactured by FMC Corporation
(FMC) and sold by Woodward Spring Shop, Inc. (Woodward). Chandler
brought an action in the Superior Court against FMC and Woodward
alleging negligence and breach of warranties in the design and sale of
an allegedly defective side climbing system on the fire engine. Chandler
claimed that a step on the side of the fire engine was too small to
afford proper balance for a person climbing up the side of the fire
engine. Chandler's wife and their minor children brought separate claims
for loss of consortium. Prior to trial, the plaintiffs dismissed their
claims against Woodward and their negligence count against FMC.
*333
The matter was tried before a Superior Court judge and a jury. For
reasons not apparent on the record, the judge decided, at the start of
the trial, to set time limits on all the witnesses' testimony.
[FN2] As a result, the following
discussions occurred at the bench during the direct examination of the
plaintiff Chandler:
FN2.
Although nothing in the record gives the judge's reasons for the
imposition of time limits on the witnesses' testimony, according to
the plaintiffs' brief, the judge placed time limits because, when
the case was called for trial, there were only three days remaining
in the session. Despite the parties' estimate of a two-week trial,
it was completed in three days.
Judge: "You have two minutes."
**627
PLAINTIFFS' COUNSEL: "That's a total of forty-five minutes, your
honor, for the plaintiff?"
JUDGE: "That's right."
PLAINTIFFS' COUNSEL: "Would you note my objection, your honor?"
JUDGE: "That's right."
During cross-examination of Chandler, FMC's counsel was informed by the
judge that "[y]ou have another eight minutes, you know." Later, FMC's
counsel was summoned to the bench where the following occurred.
Judge: "That's it." FMC'S COUNSEL: "Could I just state for the record,
your honor, that there [are] a number of other avenues of inquiry into
which I would go if I had the time, and I'd like to object to your
cutting me off at this point."
JUDGE: "I told you how much time you had, and you've gone over it."
*334
PLAINTIFFS' COUNSEL: "May I have an opportunity for redirect, your
honor?"
JUDGE: "Sure."
PLAINTIFFS' COUNSEL: "How much time?"
JUDGE: "Ten minutes."
After the evidence on the liability aspect of the claim had concluded,
the judge announced to the jury, "For reasons of the court's schedule, I
am what they call bifurcating the case, that is, I'm going to put
liability to you separately from damages." In his remarks, the judge
also informed the jury that "[i]f you find liability for the plaintiff,
then the second stage of the case will open up, and we will have
additional evidence on the matter of all the damages."
Before the liability issue was submitted to the jury, the plaintiffs
filed a motion for a "directed verdict" on the
Correia defense
issue. In
Correia v. Firestone Tire & Rubber Co., 388 Mass.
342, 355, 446 N.E.2d 1033 (1983), the
Supreme Judicial Court ruled that, where a plaintiff asserts a personal
injury claim based on a breach of implied warranty of merchantability, a
defendant may raise as an affirmative defense that the plaintiff is
barred from recovery because he violated a duty "to act reasonably with
respect to a product which he knows to be defective and dangerous" and
that the plaintiff's conduct was the cause of the injury.
According to the plaintiffs, FMC was not entitled to a jury instruction
on the
Correia defense
because (1) there was no evidence offered by FMC that would support a
Correia
instruction, (2) FMC failed to plead the affirmative defense in its
answer, and (3) FMC failed to supplement its answers to interrogatories
relative to the defense. The judge denied the motion, stating that
Mass.R.Civ.P. 15(b),
365 Mass. 761 (1974), "will allow [the amendment] on this evidence." The
judge then instructed the jury, among other things, that Chandler could
not recover if FMC met its burden of proving that "Chandler actually
knew that the product he was using was defective and dangerous" and that
he "acted unreasonably in using the product." In accordance with his
instruction,
*335
the judge submitted special questions on the
Correia defense
for the jury to answer.
The special questions submitted to the jury were as follows:
"1. Did FMC ... breach any warranties which caused an injury to Carleton
Chandler?
___ Yes ___ No
2. (a) Did Carleton Chandler know the product to be defective and
dangerous? ___ Yes ___ No
(b) If the answer to 2(a) is 'yes', did he then proceed voluntarily and
unreasonably to use the product?
___ Yes ___ No
(c) If the answer to 2(b) is also 'yes', did Carleton Chandler's actions
cause his injury?
___ Yes ___ No"
The jury answered all the questions in the affirmative, thereby finding
that FMC had been in breach of warranties but that Chandler knew the
product to be defective and dangerous and had proceeded voluntarily and
unreasonably to use it. Finally, the jury found that Chandler's actions
caused his injury.
**628
Although the jury's answers to the special questions were in favor
of FMC on the liability issue, the judge decided, over FMC's objection,
to allow the trial to continue on the issue of damages. At a bench
conference, the judge informed the lawyers for the parties that the
trial should proceed because he had "some ... problems" with the
adequacy of the evidence concerning the
Correia issue and
he wanted the reviewing court to have "everything" before it.
[FN3]
FN3.
At the bench conference, FMC's counsel argued that, if there was
insufficient evidence on the
Correia
issue, it was caused by the time limits the judge had imposed on the
witnesses. The discussion on the matter was as follows:
JUDGE: "As I indicated, I had some [Mass.R.Civ.P.]
50(b) problems with the adequacy of
the evidence on [special questions] 2A, B and C. I'll put the issue
of damages to the jury. Then when that issue comes in, [they] will
have everything on appeal to be resolved."
FMC'S COUNSEL: "Excuse me, your Honor. This
is a case where you limited my cross-examination of the plaintiff to
thirty minutes. Obviously, I--"
JUDGE: "No. I limited it to forty minutes."
FMC's COUNSEL: "I believe that's incorrect,
your Honor. I had to make some difficult decisions as to what lines
of examination to pursue on that because I knew I couldn't get
everything I needed."
JUDGE: "Quid ad punctum?"
FMC'S COUNSEL: "Excuse me?"
JUDGE: "Quid ad punctum? What's the point
of what you're saying?"
FMC's COUNSEL: "The point is that had I
been given ample time to cross- examine [Chandler], there would have
been more evidence on [special] question 2, and, therefore, whatever
issues there are at this point as to the--"
JUDGE: "The reviewing court can judge for
itself whether you wisely spent
the time allocated to you in the
cross-examination."
The trial proceeded on the damages issue in accordance with the judge's
decision. After the parties concluded their
*336
presentation of the evidence on the matter, the judge instructed the
jury on the law of damages. He specifically instructed the jury not to
take into account any evidence of liability when considering the damages
issue. The jury returned a verdict in favor of Chandler in the amount of
$12,262.58. The jury found in favor of FMC in regard to Chandler's wife
and children's claim.
After the verdicts on damages were returned, the parties filed various
motions. The plaintiffs filed a motion for judgment notwithstanding the
verdict on the liability issue and a motion for new trial on the damages
issue only.
Mass.R.Civ.P. 59(a),
365 Mass. 827 (1974). In regard to the latter motion, the plaintiffs
also filed a motion for an additur. FMC filed a motion for judgment
notwithstanding the verdict or, in the alternative, for a new trial in
regard to the
*337
jury's finding that FMC had committed a breach of its warranty. FMC
claimed, among other things, that there was no evidence to support the
jury's finding.
After considering the various motions, the judge reversed his previous
ruling that the
Correia defense
issue was a matter to be decided by the jury and instead ruled that the
issue should not have been submitted to the jury.
[FN4]
The judge then allowed the plaintiffs' motion for judgment
notwithstanding the verdict and ordered judgment to enter in favor of
Chandler for $12,262.58 on his breach of warranty claim. He denied the
remaining motions of both parties.
FN4.
Although the discussion between the parties' attorneys and the judge
take up eighteen pages of transcript, it is not entirely clear on
what grounds the judge based his decision to grant the plaintiffs'
motion for judgment notwithstanding the verdict. We have previously
alluded to the judge's comments concerning the "problems" he had
with the adequacy of the evidence introduced by FMC on the
Correia
defense issue (see note 3, supra ). Before granting the plaintiffs'
motion, the judge also discussed with both counsel his concerns with
FMC's failure to plead the
Correia
defense in its answer and also its failure to supplement its answers
to interrogatories in regard to the defense.
From our reading of the record, it appears
that FMC did not introduce sufficient evidence on the
Correia
defense issue. That failure may be attributable to the time limits
imposed by the judge (see note 3, supra ). In any event, at the new
trial, FMC may introduce relevant evidence on the
Correia
defense issue. The sufficiency of that evidence is to be considered
by the trial judge presiding at the new trial.
On appeal, the plaintiffs claim, among other things, that they are
entitled to a new trial on the issue of damages because the judge
improperly imposed time limits on the testimony of the witnesses. FMC
**629
filed a cross appeal claiming that the judge committed error in
granting the plaintiffs' motion for judgment notwithstanding the verdict
on the liability issue. It claims, among other things, that sufficient
evidence had been presented on the
Correia defense
to have it submitted to the jury.
The question of the propriety of a trial judge imposing time limits on
witnesses' testimony appears to be a matter of first impression in the
Commonwealth. We therefore write on a clean slate.
*338
[1]
[2]
"The judge's function at any trial is
to be 'the directing and controlling mind at the trial....' "
Commonwealth v. Sapoznik, 28 Mass.App.Ct. 236, 241
n. 4, 549 N.E.2d 116 (1990), quoting
from
Commonwealth v. Wilson, 381 Mass. 90, 118, 407
N.E.2d 1229 (1980), quoting from
Commonwealth v. Lewis, 346 Mass. 373, 379, 191
N.E.2d 753 (1963), cert. denied,
376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653 (1964).
An important part of the judge's function is to ensure that the trial
always moves forward, without needless consumption of time and, "without
repetitions and without diversions into collateral or disconnected
matters."
Goldman v. Ashkins, 266 Mass. 374, 380, 165 N.E.
513 (1929). In that regard, a judge has
wide discretion to impose reasonable limits on the length of the direct
and cross- examination of witnesses.
Id. at 379-380, 165 N.E. 513.
However, the limits must be reasonable; they must not prevent a party
from presenting its entire case to the fact finder.
Id. at 380, 165 N.E. 513,
citing
Union Trust Co. v. Magenis, 266 Mass. 363, 365,
165 N.E. 496 (1929).
[3]
Here, the judge imposed arbitrary time
limits on the witnesses' testimony. As a result, the record clearly
shows that the judge prevented the parties from presenting their entire
case to the jury, both on the liability issue and damages. The judge,
therefore, abused his discretion, and that error infected the entire
trial. [FN5]
FN5.
Undoubtedly because the plaintiffs prevailed on the liability issue
as a result of the judge's allowance of their motion for judgment
notwithstanding the verdict, on appeal, they have requested a new
trial on damages only because of the imposition of time limits. FMC
has not requested a new trial on liability, which is somewhat
surprising considering its vigorous objections to the imposition of
time limits at the trial. Our examination of the record clearly
shows, however, that the parties did not receive a fair trial
because of the imposition of time limits, and we have granted a new
trial on both the liability and damages issue. Cf.
Foley v. Lowell Sun Publishing Co., 404 Mass.
9, 11, 533
N.E.2d 196 (1989).
This result is consistent with our conclusion that the relief sought by
each party would not be fair to the other party.
"The ascertainment of facts having probative force on the issues,
nothing more and nothing less, is the whole object of a trial in court."
Goldman v. Ashkins, supra, 266 Mass. at 379, 165
N.E. 513. That objective is thwarted by
the arbitrary imposition of time limits on witnesses' testimony. For
well over a century, trial judges
*339
in the Commonwealth, have been able to control the flow of testimony
at trials without the imposition of time limits. We do not see any
reason for the adoption of such means now.
The judgments are vacated. The matter is remanded to the Superior Court
for a new trial on all the issues contained in the plaintiffs'
complaint.
So ordered.
