Offer of proof on bias viewed as lacking in ‘Luppold’
Kris Olson // October 10, 2024
Attorneys say they suspect the Supreme Judicial Court may take something other than an all-or-nothing approach to the main issue in a case argued on Oct. 7: whether the trial judge in a multi-defendant medical malpractice case abused his discretion by precluding one of the defendants from cross-examining a co-defendant as to potential bias arising from a “high-low” agreement.
In Luppold v. Hanlon, et al., the plaintiff asserted claims of medical negligence against a physician assistant, nurse practitioner and three nurses, alleging each had not met the applicable standard of care in failing to diagnose blood clots in his left leg, which ultimately had to be amputated above the knee.
The physician assistant entered into a high-low agreement with the plaintiff, which defendants in medical-malpractice cases typically do to cap any potential jury award at the limits of their insurance coverage.
While the PA was on the stand during trial, the attorney for one of the nurses raised the issue of bias relating to the high-low agreement at sidebar, anticipating raising the subject before the jury. But almost immediately, the judge responded: “We’re not going to get into any of that.”
The nurse is now arguing that the judge erred because, when potential bias is involved, it is a “fundamental principle” that reasonable cross-examination is a matter of right that “cannot be unreasonably restricted,” citing to §611(b)(2) of the Massachusetts Guide to Evidence.
Massachusetts affords cross-examination for bias “special protection,” which “flows ineluctably from its ‘sacred’ right to jury trial,” the nurse argues in her brief.
“Completely concealing a bias issue from a jury disables jurors from performing their most important function of assessing witness credibility, and therefore the truth, rendering the ‘jury trial’ a charade,” the brief reads.
But the plaintiff counters that restricting cross-examination regarding evidence of a high-low settlement agreement was well within the judge’s broad discretion, especially given that the nurse’s trial counsel had failed to present an offer of proof that might reasonably support a claim of bias.
Confidentiality of settlement discussions is such a bedrock principle [that] it seems out of step to suggest they must be available for cross even for high-low agreements.
Were high-low agreements to be automatically disclosed to juries, even when bias claims were completely unsupported, it would undermine the goal of encouraging settlements, a public policy endorsed by the SJC in the 1996 case Morea v. Cosco, the plaintiff also argued.
At least on the record in the Luppold case, the plaintiff may have the better argument, attorneys say. However, those attorneys also expect the SJC would at least leave the door cracked for future cases in which cross-examination about a high-low agreement might be warranted.
Record lacking
Count Southborough attorney Alexander R. Zwillinger among those surprised how strongly the defendant-appellant argued that the existence and terms of a settlement agreement should be subject to cross-examination as a “matter of right.”
“Confidentiality of settlement discussions is such a bedrock principle,” he said. “It seems out of step to suggest they must be available for cross even for high-low agreements.”
Zwillinger and others also noted that confidentiality of such agreements does not protect only one party.
“This is not just a defendants’ issue or a plaintiffs’ issue — everyone benefits from candid settlement discussions,” Zwillinger said. “Here, a defendant wanted to bring out testimony that another defendant had already settled to suggest they were biased, but it is easy to imagine the shoe on the other foot where a plaintiff wants to elicit testimony one defendant settled to imply another is liable or biased.”
In fact, Newton Centre attorney Matthew J. Fogelman said he found persuasive the plaintiff’s rebuttal to the claim that the high-low agreement gave the PA a personal stake in the outcome. The opposite is true, the plaintiff argued.
“Once the High-Low agreement had been reached and he was insulated from personal exposure to an excess judgment, [the PA] could have said nearly anything on the stand without in any way affecting his own personal interest,” the plaintiff’s brief reads.
Both Fogelman and Zwillinger agreed that the plaintiff-appellee did a good job distinguishing the application of §611(b)(2) of the Massachusetts Guide to Evidence in criminal cases, in which there is a constitutional right to cross-examine witnesses as to bias, and civil cases, in which that rule does not apply.
They also concurred that part of the defense’s struggle relates to how it articulated — or failed to articulate — its justification for the need to cross-examine the co-defendant about the high-low agreement.
“As a trial lawyer, I am constantly reminded how important it is to make a clear record in the moment,” Zwillinger said. “You need to know how to strike a balance once the judge makes his or her decision, but the defendant-appellant’s trial lawyer could have done a better job preserving the issue for appeal.”
Luppold involves nothing more than creative appellate lawyering and “trying to create something out of nothing,” according to Salem attorney Thomas R. Murphy.
“The cardinal rule in appellate lawyering is to have a good record,” he said. “The reason that there is not a good record is because there wasn’t an appellate lawyer thinking about it before trial.”
Murphy noted that some highly sophisticated trial lawyers insist on having an appellate lawyer with them at counsel table during trial to focus on creating a record that frames the key issues well.
To the extent the SJC can get to the core issue in Luppold, Boston medical malpractice attorney Elizabeth N. Mulvey expects the court may land “in the middle of the road,” saying it is in a judge’s discretion to either permit counsel to explore the effect of a high-low agreement or disallow that questioning.
High-low agreements “do serve a purpose,” Mulvey said, adding that, in most cases, bias will be a nonissue because the defendant and defendant’s counsel hired by the insurance company still have an incentive to win the case and pay only the “low” amount in the high-low agreement.
It would be unusual to see a defendant sign a high-low agreement and then “do a 180” on their prior testimony, Mulvey said.
“The ethos [among defendants] in malpractice cases is ‘we all hang together or surely we will all hang separately,’” she said.
If a defendant does drastically change his story, it is usually more effective to focus the jury on the inconsistencies themselves rather than muddy the waters by bringing the high-low agreement — and by extension, the defendant’s insurance coverage — into the discussion, Mulvey said.
“If I was sitting as a trial judge, I would have to have something incredibly blatant to decide that the probative value outweighed the confusion of bringing in that collateral issue,” she said.
Justices see same issues
During oral argument, the justices homed in on some of the same flaws in the record that stood out to attorneys.
Justice Scott L. Kafker noted the need to make an offer of proof to the trial judge.
“You’ve got to [say], ‘Your honor, this could be a fishy high-low. There could be something sinister here. We want to make an offer of proof on this,’” he said. “None of that’s happened.”
Justice Dalila Argaez Wendlandt observed that the nurse’s attorney had cross-examined the PA, just not about the high-low.
“The question, I think, is that you were prohibited from asking about the high-low agreement because you didn’t tell the trial judge what inconsistency [the PA] had created between his trial testimony on either day, or the deposition testimony years before,” she said.
The appellant’s attorney, Myles W. McDonough maintained not only that trial counsel had adequately presented the issue to the judge but that the judge exceeded whatever limited discretion he enjoyed under an evidentiary rule that, as Justice Frank M. Gaziano noted, contemplates “reasonable” restrictions on questioning.
“Once [the judge] has the ‘might’ — there might be bias afoot — [the] test [is] satisfied,” McDonough said. “That’s what triggers the right. This is not like a standard settlement agreement.”
He continued: “You can’t do an offer of proof in the traditional sense in this context. Why? Because the information is hidden from you.”
McDonough began to raise “three inferences that arise as a matter of law from the mere utterance of the words ‘high-low’ in front of a trial judge.”
But Kafker cut him off when he raised the term quid pro quo.
Kafker said he could better understand that argument as it would relate to a so-called Mary Carter agreement, in which the amount owed by the settling defendant is offset by any money the plaintiff recovers from the non-settling defendants, making the settling defendant’s financial incentive much clearer.
“High-low, you’re just bracketing — it’s totally different,” he said.
But McDonough insisted that it was imperative to allow the issue of bias to be probed.
“Bias is the most important thing that jurors deal with — bias and credibility,” McDonough said. “It goes right to the heart of the right to a jury trial.”
However, the SJC had said in multiple past cases that a proponent must make a plausible showing of the bias they are claiming before a judge will open the door to questioning about that bias, said the plaintiff’s attorney, Adam R. Satin of Boston. That was simply not done in Luppold, he said.
Specifically, there was no evidence that the PA changed his testimony at all, Satin noted.
“You will not find any examination by [the nurse’s trial counsel] of [the PA] where he brought one change to the attention of the jury simply as a prior inconsistent statement — not one,” Satin said.
As a result, it should be clear that the PA did not become, in the words of Justice Elizabeth N. Dewar, an “unleashed helper” upon signing the high-low agreement, Satin said.
In another case, it might be appropriate for a judge to permit an attorney to conduct voir dire with a witness who had signed a high-low agreement, he allowed.
Jury instruction also discussed
Though McDonough opened his oral argument on it, the SJC did not seem particularly interested in exploring another issue briefed by the parties: whether the trial judge abused his discretion in utilizing the language of the Superior Court model jury instruction for medical malpractice in his jury charge on the issue of causation.
The dispute between the parties centers on whether that instruction conflicts in some way with the SJC’s 2021 decision in Doull v. Foster.
“The model instruction adds language that burdens the defendant beyond what Doull permits,” the appellant argues in her brief. “First, it suggests that to find for the defendant on causation, the jury must not only find that the plaintiff’s ‘harm would have happened anyway’ without the defendant’s negligence, but also that the negligence ‘had no impact’ on that harm, referring to these concepts in the conjunctive (‘and’), thereby erroneously conveying that they are, of necessity, two separate things.”
The plaintiff countered that no reasonable person would read the instruction that way.
“The ‘and’ that is utilized in the sentence describing a situation where causation does not exist does not mean that ‘had no impact’ and ‘the same harm would have happened anyway’ are separate things that must both be found; it means that they are two ways of saying the same thing, i.e., that there is no causation if the injuries would have been the same even if the defendant had not been negligent,” the plaintiff’s brief reads. “Any reasonable reading of the sentence leads one to understand that the instruction is merely defining the phrase ‘had no impact’ as meaning ‘the result would have happened anyway.’”
Seemingly taking that cue, Wendlandt suggested at oral argument that the instruction might be fixed by simply changing the conjunction “and” to the word “means” or “meaning.”
