141 F.

3d 8
49 Fed. R. Evid. Serv. 502

Jean MITCHELL, Etc., Plaintiff, Appellee,

v.
UNITED STATES of America, Defendant, Appellant.
Jean MITCHELL, etc., et al., Plaintiffs, Appellants,
v.
UNITED STATES of America, Defendant, Appellee.
Nos. 96-2216, 97-1442, 96-2217.

United States Court of Appeals,

First Circuit.
Heard Oct. 8, 1997.
Decided March 25, 1998.

Mary Elizabeth Carmody, Assistant United States Attorney, Senior

Litigation Counsel, Boston, MA, with whom Donald K. Stern, United
States Attorney, Boston, MA, was on brief, for appellant United States.
Celine M. Boyle, with whom Robert M. Higgins, Elizabeth N. Mulvey
and Lubin & Meyer, P.C., Boston, MA, were on brief, for appellee Jean
Mitchell.
Before TORRUELLA, Chief Judge, LYNCH, Circuit Judge, and
STEARNS,* District Judge.
TORRUELLA, Chief Judge.

Alfred J. Hassey died on June 3, 1990, from a stroke he had suffered soon after
undergoing a colonoscopy at the West Roxbury Veterans Administration
Hospital. His daughter, Jean Mitchell, as Administratrix of his estate, filed this
wrongful death action on behalf of her mother, siblings, and herself against his
treating physicians, Drs. Carl Berg and Marc Silver, as well as against the
United States of America, the owner of the Hospital. After dismissing the
claims against the individual defendants and holding a bench trial on the
remaining claims, the trial judge found the United States liable and awarded

damages to the decedent's widow, but not to his children. Both the United
States and the Administratrix, on behalf of the decedent's children, crossappealed. We affirm, with one minor clarification.
BACKGROUND1
2

Mr. Hassey had been diagnosed in 1985 with atrial fibrillation, a heart condition
that often causes an increase in the rate at which blood clots are formed. His
doctors therefore prescribed the use of Coumadin, an anticoagulant medication,
in order to help prevent the formation of blood clots. Mr. Hassey had also
suffered from colon cancer, which was treated by a hemicolonectomy in 1983.
The operation was successful and he remained asymptomatic until the end of
his life. Nevertheless, he was required to undergo prophylactic colonoscopies
approximately every two years to detect any recurrence of the cancer. In June of
1988, Mr. Hassey underwent a colonoscopy at the Hospital. He was taken off
Coumadin three days prior to the operation, and instead given Heparin, another
anticoagulant. Coumadin therapy was restarted the same day he was discharged
from the Hospital. He reported no ill effects from this operation.

Two years later, Mr. Hassey was due for another colonoscopy. Without
reviewing his medical chart or medical history, Mr. Hassey's physicians, Drs.
Carl Berg and Jacques Van Dam, instructed him to discontinue his Coumadin
therapy starting five days prior to his colonoscopy. Mr. Hassey stopped taking
Coumadin six days before the procedure, on April 17, 1990. He was admitted
to the Hospital on April 22, 1990, and on the following day, Drs. Berg and Van
Dam performed the colonoscopy. During the operation, a suspicious polyp was
located and removed by "hot" biopsy, pursuant to which the surgeons
cauterized the intestinal wall from which the polyp had been removed. The
polyp was later determined to be pre-cancerous. Mr. Hassey was discharged on
that same day by Hospital physician Dr. Marc Silver, and instructed to restart
the Coumadin therapy after five days.

As scheduled, Mr. Hassey restarted the Coumadin therapy on April 28, 1990,
eleven days after he had stopped taking the medication. That was the longest
period of time that he had been off Coumadin since he was first prescribed its
use. The following day, Mr. Hassey was re-admitted to the Hospital because he
was experiencing weakness in the right side of his body and had difficulty
speaking. He suffered a massive cerebral vascular accident: in lay terms, a
stroke. One month later, Mr. Hassey died from complications arising from the
stroke.

In her role as Administratrix of the Estate of Alfred J. Hassey, Jean Mitchell

filed the instant suit against Drs. Berg and Silver, as well as against the United
States of America, the owner of the Hospital. The complaint, which alleged that
the defendants' negligence was the proximate cause of Mr. Hassey's death, was
brought under the Federal Tort Claims Act, 28 U.S.C. 2671-80, and the
Massachusetts wrongful death statute, Mass. Gen. Laws ch. 229, 1-2. The
complaint specifically alleged that the defendants violated their duty of care to
the decedent by keeping him off Coumadin for an excessive period of time.
The complaint further alleged that the discontinuation of the Coumadin therapy
was the proximate cause of the stroke that ultimately led to Mr. Hassey's death.
Before trial, the Administratrix and the United States stipulated that the United
States would be substituted, in place of Drs. Silver and Berg, as the sole party
defendant. See 28 U.S.C. 2679(d)(1).
6

During the bench trial, four expert witnesses testified as to the nature and
causes of Mr. Hassey's death, two on behalf of the Administratrix, and two on
behalf of the United States. Mr. Hassey's relatives also testified as to the
emotional impact that his death had upon them. After the trial, the district
judge found that the United States was liable to Evelyn Hassey in that its
employees "failed to use the care and skill of an average qualified specialist
taking into account the advances in their profession in their care and treatment
of Alfred Hassey." The district judge awarded Mrs. Evelyn Hassey $300,000
for her loss, but awarded nothing to the Administratrix or to the decedent's
children. Various post-judgment motions were submitted to and rejected by the
district court. Both the United States and the Administratrix now appeal from
the judgment of the district court.

STANDARD OF REVIEW
7

Pursuant to Fed.R.Civ.P. 52, "[i]n all actions tried upon the facts without a
jury," the trial court's "[f]indings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the
witnesses." See Sullivan v. Young Bros. & Co., Inc., 91 F.3d 242, 246-47 (1st
Cir.1996); Irving v. United States, 49 F.3d 830, 835 (1st Cir.1995); Cumpiano
v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir.1990). Similarly,
review of decisions to admit expert testimony is for abuse of discretion. See
General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508
(1997). On the other hand, the trial court's conclusions of law are reviewed de
novo. See Damon v. Sun Company, Inc., 87 F.3d 1467, 1471 (1st Cir.1996).

APPLICABLE LAW
The district court's jurisdiction over this complaint was premised on 28 U.S.C.

The district court's jurisdiction over this complaint was premised on 28 U.S.C.
1346(b)(1), which provides that:

9 district courts ... shall have exclusive jurisdiction of civil actions on claims
the
against the United States, for money damages, ... for personal injury or death caused
by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.
10

Thus, with some exceptions not relevant to this case, the standard of liability
applicable to a suit under the Federal Tort Claims Act is provided by the law of
the state in which the tort occurred. See 28 U.S.C. 1346(b)(1) and 2674.

11

Because the tort occurred in Massachusetts, that state's law applies. The
Administratrix brought suit under the Massachusetts wrongful death statute,
Mass. Gen. Laws ch. 229, 2, which provides that "[a] person who by his
negligence causes the death of a person ... shall be liable in damages," and also
that "[a] person shall be liable for the negligence or the willful, wanton or
reckless act of his agents or servants while engaged in his business to the same
extent and subject to the same limits as he would be liable under this section for
his own act." In wrongful death actions based on death because of negligence,
the substantive standard of liability is provided by the Massachusetts common
law of torts, which we discuss below.

ANALYSIS
12

Both the plaintiff and the defendant have appealed from the judgment below.
The finding of liability is challenged only by the defendant, while both plaintiff
and defendant seek review of the award of damages. We first address the
appeal from the finding of liability.

I. Liability for Medical Malpractice

A. Application of the standard of liability
13

The negligence alleged in this case is medical malpractice. Under

Massachusetts tort law, a plaintiff in a medical malpractice suit bears the
burden of proving by a preponderance of the evidence that a physician-patient
relationship existed between the physician and the injured party, that the
physician breached his or her duty of care, and that the breach was the
proximate cause of the injury. See Blood v. Lea, 403 Mass. 430, 530 N.E.2d

344, 347 (1988); see also Poyser v. United States, 602 F.Supp. 436, 438
(D.Mass.1984); Berardi v. Menicks, 340 Mass. 396, 164 N.E.2d 544, 546
(1960). Generally, a plaintiff in a medical malpractice action may carry his or
her burden of proof on the issues of negligence and causation only with the
assistance of expert testimony. See Harlow v. Chin, 405 Mass. 697, 545 N.E.2d
602, 605 (Mass.1989) (expert testimony generally required to prove causation);
Forlano v. Hughes, 393 Mass. 502, 471 N.E.2d 1315, 1319 (1984) (expert
medical opinion generally required to prove breach of duty of care). A
physician is held to the standard of care and skill of the average practitioner of
the medical specialty in question, taking into account the advances in the
profession. See Poyser, 602 F.Supp. at 438-39 (citing Brune v. Belinkoff, 354
Mass. 102, 235 N.E.2d 793, 798 (1968)). Proof of the element of causation,
which is an issue of fact, depends on whether it is more probable than not that
the death was the result of the physician's negligence. See Harlow, 545 N.E.2d
at 605. Here it must be emphasized that:
14
[w]hile
the plaintiff is not bound to exclude every other possibility of cause for his
injury except that of the negligence of the defendant, he is required to show by
evidence a greater likelihood that it came from an act of negligence for which the
defendant is responsible than from a cause for which the defendant is not liable.
15

Forlano, 471 N.E.2d at 1319 (citations omitted).

16

The defendant argues that the district court erred as a matter of law by
evaluating its actions under a strict liability rather than negligence standard of
care. The United States points to certain isolated statements made by the trial
judge during trial that, it claims, establish that he applied a strict liability
standard of care. We disagree. The comments in question were vague and do
not necessarily establish that the judge applied the wrong standard of care.
Indeed, in his findings of fact and conclusions of law, the trial judge relied on
expert medical opinion in determining that Mr. Hassey's treating physicians
provided negligent medical care, and that their negligence was a proximate
cause of his death.
B. Admission of statistical evidence

17

The United States complains that the district court erred in refusing to admit or
consider the testimony of one of its medical experts on the statistics concerning
the risk of stroke versus the risk of bleeding. We reject this assignment of error.
The trial judge ultimately did not refuse to admit this testimony. Although he
did, at first, resist the admission of the statistical evidence, on the following day
the trial judge proceeded to hear the testimony in question. The defendant's

invitation to reverse the judgment below is thus based on its speculative

conclusion that the absence of a discussion of statistical evidence in the judge's
findings of fact "clearly indicate[s]" that he did not consider this evidence
because he was biased against its use. We decline the invitation to engage in
such speculation.
C. Admission of expert testimony
18

The United States also claims that the judgment below must be reversed insofar
as it rested on the plaintiff's expert testimony, which it contends should have
been excluded by the district court under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
We reject this argument, too. The baseline for approaching questions of the
admissibility of evidence is Fed.R.Evid. 402, which provides that "[a]ll relevant
evidence is admissible," except as otherwise provided by the Constitution,
laws, or rules of the court. Evidence is relevant if it has "any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence."
Fed.R.Evid. 401. As the Supreme Court noted, "the Rule's basic standard of
relevance thus is a liberal one." Daubert, 509 U.S. at 587, 113 S.Ct. at 2793-94.

19

With regard to expert testimony, the rules of evidence specifically provide:

20scientific, technical, or other specialized knowledge will assist the trier of fact to
If
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise.
21

Fed.R.Evid. 702. In Daubert, which interpreted Rule 702, the Supreme Court
held that when a trial judge is faced with the decision to accept or reject a
proffer of expert scientific testimony, the judge must determine:

22
whether
the expert is proposing to testify to (1) scientific knowledge that (2) will
assist the trier of fact to understand or determine a fact in issue. This entails a
preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning and methodology
properly can be applied to the facts in issue.
23

Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796; see also Vadala v. Teledyne
Indus., Inc., 44 F.3d 36, 39 (1st Cir.1995). Of course, there is a third, implicit
consideration: "[t]he trial court first must determine whether the putative expert
is qualified by knowledge, skill, experience, training, or education." See Ed

Peters Jewelry Co., Inc. v. C & J Jewelry Co., Inc., 124 F.3d 252, 259 (1st
Cir.1997) (quoting Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472,
476 (1st Cir.1997)); cf. Rohde v. Lawrence General Hosp., 34 Mass.App.Ct.
584, 614 N.E.2d 686, 688 (1993). Finally, we note that a district court enjoys
substantial discretion to decide whether to admit or exclude relevant expert
testimony. See General Elec. Co., 522 U.S. 136, 118 S.Ct. 512; Bogosian, 104
F.3d at 479.
24

There is no dispute over the professional qualifications of the plaintiff's expert

witnesses, Drs. Barry Singer and Howard Adler. The first issue is thus whether
the testimony offered by the plaintiff's expert witnesses was relevant--i.e.,
whether the testimony could "assist the trier of fact to understand or determine
a fact in issue." Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. The issue before
the judge was whether Mr. Hassey's treating physicians acted according to the
standard of care and skill of the average member of a practitioner of their
medical specialty, taking into account the advances in the profession, when
they adjusted Mr. Hassey's anticoagulant levels before and after the
colonoscopy.

25

The experts for both parties testified that during a colonoscopy, if a polyp is
detected, the surgeon normally performs a polypectomy (a type of biopsy),
cutting off the polyp for examination. The experts also agreed that
anticoagulants can increase the risk of bleeding from wounds and retard their
healing. Thus, to allow the clotting factors of a colonoscopy patient on
Coumadin therapy to return to normal so as to permit adequate healing of his or
her intestinal tissue, such a patient is required to be off Coumadin for a period
of time. The longer the period during which the patient is not taking Coumadin,
however, the greater the risk that he or she will suffer a stroke. The proper
length of time to keep a colonoscopy patient off Coumadin therefore depends
on a balancing between the risk of bleeding and the risk of stroke.

26

The testimony offered by Drs. Singer and Adler was certainly relevant to the
issue at trial. Dr. Singer, an internist with specialties in hematology and
oncology, testified that he had substantial experience in the use of Coumadin,
and that he had performed several colonoscopies earlier in his career. He also
testified that he had been consulted over 100 times by gastroenterologists
seeking advice on the proper treatment for patients on anticoagulant medication
who were scheduled to undergo colonoscopies. Similarly, Dr. Adler, an
internist with a specialty in gastroenterology, testified that he has performed at
least twenty thousand colonoscopies, as well as numerous biopsies, including
polypectomies. He further testified that he was familiar with the risk of
bleeding associated with these procedures, and with the standard of care

expected of gastroenterologists in adjusting anticoagulant levels for patients

undergoing colonoscopies. We find no error in the district judge's
determination that the testimony provided by both of these experts would assist
him in understanding and determining the facts at issue in this case.
27

Nevertheless, the United States challenges the admissibility of the opinions of

these experts on the basis that such testimony was not reliable. With regard to
Dr. Singer, the defendant claims that he was not qualified to testify about the
defendants' treatment of Mr. Hassey because he is not a specialist in
gastroenterology, and that he could not provide a reliable opinion on the risk of
stroke as compared to the risk of bleed because he admitted during trial that he
had no direct knowledge of the risk of bleeding from a colonoscopy during
which a polypectomy was performed.

28

We disagree. First of all, the Government is simply wrong to suggest that Dr.
Singer was not qualified to testify merely because he was not a
gastroenterologist. "The fact that the physician is not a specialist in the field in
which he is giving his opinion affects not the admissibility of his opinion but
the weight the jury may place on it." Payton v. Abbott Labs, 780 F.2d 147, 155
(1st Cir.1985); cf. Letch v. Daniels, 401 Mass. 65, 514 N.E.2d 675, 677 (1987)
("A medical expert need not be a specialist in the area concerned nor be
practicing in the same field as the defendant.")

29

Moreover, the specific testimony offered by Dr. Singer was within his area of
expertise. He testified that cardiologists and hematologists are very much aware
of the relative benefits and risks arising from the use of anticoagulants such as
Coumadin, and the effects of their discontinuation. Dr. Singer explained that
when a patient who has been taking Coumadin for several years is taken off the
medication, that patient will enter a hypercoagulative state in which the rate at
which clots are produced is greatly increased. Dr. Singer also testified that
Coumadin takes about three days after it is restarted to have any effect on clot
formation. Furthermore, Dr. Singer noted that he was familiar with the standard
of care for gastroenterologists because he had been consulted by
gastroenterologists on more than 100 occasions on the appropriate treatment for
colonoscopy patients who are on anticoagulant therapy.

30

The United States makes much of the fact that Dr. Singer admitted that he did
not know how the risk of bleeding would vary depending on whether a hot or
cold biopsy had been performed. As other witnesses explained, biopsies can be
"cold" or "hot," the main difference being that during hot biopsies, the flesh is
cauterized afterwards to minimize bleeding immediately after the operation.
Patients undergoing hot biopsies, however, are at risk for delayed bleeding

between seven and fourteen days after the operation, when the scab that formed
over the cauterized tissue falls away. The defendant argues that Dr. Singer's
admission establishes that his opinion--that the risk of bleeding was less than
the risk of stroke--was personal speculation unsupported by any knowledge,
training or experience and thus lacked a reliable factual foundation.
31

The inference is unwarranted. A review of the trial transcript indicates that Dr.
Singer merely stated that he could not quantify the risk of bleeding from a
biopsy. In the context of the question, "risk" referred to the likelihood of
bleeding, not its severity. Dr. Singer also testified, however, that he knew that
the risk of bleeding was generally lower than the risk of stroke in terms of
severity because only a tiny fraction of patients undergoing biopsies die as a
result of these procedures. In his opinion, the danger posed by keeping a patient
off Coumadin for 11 days, with the attendant increase in the rate of clot
production, is a greatly increased risk that the patient will suffer a stroke, which
often leads to brain damage and death. It was not necessary for Dr. Singer to be
able to specify in numerical terms the likelihood that a biopsy patient would
bleed after an operation in order to support his opinion that the risk that a
patient would suffer a stroke clearly exceeded the danger posed by the
possibility of post-operative bleeding, and thus that anticoagulants should be
restarted sooner than the defendants did with Mr. Hassey.

32

The United States also objects to Dr. Adler's testimony, which it also claims
was unreliable and therefore should have been excluded under Daubert. Dr.
Adler testified that he would have restarted anticoagulant therapy several days
before Mr. Hassey's physicians did. The defendant's main complaint is that Dr.
Adler rendered his opinion without first reading the transcripts of the
physicians' depositions or certain parts of the medical record, including the
post-operative report prepared by Dr. Berg. This complaint would be valid only
if the parts of the record that Dr. Adler did not read contained information that
was unavailable in the parts that he did read. In fact, Dr. Adler's evaluation of
the pathologist's report allowed him to study the nature of the incisions made
by the defendants in the course of the biopsy. This report is at least as reliable a
basis for his opinion as the report prepared by the treating physicians.

33

The defendant also argues that there was a discrepancy between the treatment
that Drs. Adler and Singer would have recommended for Mr. Hassey. We fail
to see how this discrepancy should render Dr. Adler's testimony inadmissible.2
To the contrary, although couched in Daubert terms, this argument is a thinly
veiled challenge to the district court's determination of the credibility and
soundness of Dr. Adler's opinion. "The fact that defendant was able to undercut
some of the research basis for the doctors' opinions does not affect the

admissibility of those opinions. If the factual underpinnings of their opinions

were in fact weak, that was a matter affecting the weight and credibility of their
testimony." Payton, 780 F.2d at 156 (citing Coleman v. DeMinico, 730 F.2d
42, 47 (1st Cir.1984)); cf. Baker v. Commercial Union Ins. Co., 382 Mass. 347,
416 N.E.2d 187, 190 (1981) ("The question whether the basis of the doctor's
opinion is sound goes to the weight of the evidence, not its admissibility.") The
finder of fact's determinations of credibility, and of the weight of the evidence
in general, are not disturbed on appeal except for clear error. A finding of fact
is clearly erroneous when the reviewing court is left with the definite and firm
conviction that a mistake has been made. See Anderson v. City of Bessemer
City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Thus, a
credibility determination is clearly erroneous only when it is based on
testimony that was inherently implausible, internally inconsistent, or critically
impeached. See Keller v. United States, 38 F.3d 16, 25 (1st Cir.1994).
34

Dr. Adler's testimony was admissible and the court was entitled to rely on it: it
was plainly plausible, internally consistent (it was partly inconsistent with Dr.
Singer's testimony, not with his own), and was not critically impeached. More
generally, the parties presented conflicting expert testimony from medical
specialists on the issue of whether the defendants' decision to keep Mr. Hassey
off Coumadin for more than ten days was a breach of the applicable standard of
medical care and the proximate cause of his death. After reviewing the record
below, including the transcripts of the trial, we find the evidence before the
district judge to be sufficient to permit him to find that Drs. Berg, Van Dam,
and Silver were negligent in their treatment of Mr. Hassey, and that their
negligence was a proximate cause of his death.
D. Denial of the Motion for New Trial

35

The United States argues that a new trial was required because the plaintiff
failed to provide any credible evidence that the risk of stroke was greater than
the risk of bleeding, or that Mr. Hassey would not have had a stroke had the
Coumadin therapy been restarted earlier. We disagree, for reasons already
amply explored above.
E. Denial of the Motion for Mistrial

36

Plaintiff's counsel filed a motion requesting certain conclusions of law,

including a suggested award of damages. The United States argues that since
the claim was for pain, suffering, and related subjective damages, the
suggestion was a direct violation of Massachusetts law, which allegedly

prohibits counsel from requesting that a finder of fact enter a specific subjective
amount for unliquidated damage claims.
37

The request for mistrial was properly denied. First, a claim under section 2 of
the wrongful death statute includes compensation not only for unliquidated
damage claims, but also for liquidated damage claims, such as loss of income,
which are not subject to the alleged prohibition. 3 Furthermore, the "prohibition"
on suggestions as to the amount of awards for unliquidated damage claims is
not a true prohibition, but rather only a strong recommendation. See, e.g.,
Goldstein v. Gontarz, 364 Mass. 800, 309 N.E.2d 196, 207 n. 15 (1974) ("We
agree with recent suggestions that in most cases where the damages are
unliquidated and rest with the jury, the trial judge would be better advised to
withhold the ad damnum from the jury than to read the figure and then attempt
to negate its effect with an instruction.") (emphasis added). Moreover, a review
of the relevant case law indicates this rule has only been applied to jury trials.
In addition to the lack of precedent, we see no reason why Massachusetts would
choose to extend the rule to bench trials, particularly since judges, unlike juries,
are expected to be able to avoid being unduly influenced by counsel. Here, not
only was the trial a bench trial, but it was the trial judge himself who requested
an estimate of the amount of damages that should be awarded.
F. Denial of the Motion for Reconsideration

38

In September of 1996, an article was published in the Journal of

Gastrointestinal Endoscopy which contained the results of a nationwide survey
of gastroenterologists to determine the average standard of practice with respect
to the management of antiplatelet agents and anticoagulants, including
Coumadin, when performing diagnostic and therapeutic endoscopic procedures,
including colonoscopies. See C.E. Angueira, et al., Gastrointestinal Endoscopy
in Patients Taking Antiplatelet Agents and Anticoagulants: Survey of ASGE
Members, 44 J. of Gastrointestinal Endoscopy, No. 3, at 309 (1996). The
following month, the Government filed a motion under Fed.R.Civ.P. 60(b)(2)
for relief from judgment, claiming that the article constituted "new evidence"
that directly contradicted the district court's findings of fact and conclusions of
law. The district court denied the motion, and the United States now argues that
the denial was an abuse of discretion.

39

A motion under Rule 60(b)(2) for "new trial on the ground of newly discovered
evidence requires proof of the following elements:"

40

(1) The evidence has been discovered since the trial;

41

(2) The evidence could not by due diligence have been discovered earlier by
the movant[;]

42

(3) The evidence is not merely cumulative or impeaching; and

43

(4) The evidence is of such nature that it would probably change the result if a
new trial is granted.

44

Raymond v. Raymond Corp., 938 F.2d 1518, 1527 (1st Cir.1991) (quoting
Nickerson v. G.D. Searle & Co., 900 F.2d 412, 417 (1st Cir.1990)). A district
court's ruling on a motion under Rule 60(b) will only be overturned for an abuse
of discretion. See Raymond, 938 F.2d at 1527; Nickerson, 900 F.2d at 416;
Duffy v. Clippinger, 857 F.2d 877, 879 (1st Cir.1988).

45

There are two problems with the defendant's argument. The first is that it is by
no means clear that this article constitutes "newly discovered evidence" for
purposes of Fed.R.Civ.P. 60(b). Although the trial was held on May 1-3, 1996,
approximately four months before the article was published, an abstract of the
article had been available since 1993. A more diligent effort to research the
relevant medical literature by the defendant should have produced the abstract.

46

The second and more important problem is that the evidence would not be
likely to change the result of the trial. The United States has retained as experts
some of the authors of the article, one of whom would testify that, based on the
survey, he thought that 60% of the gastroenterologists in the United States
would have restarted Coumadin after a colonoscopy within 7 days or less. The
proposed expert would also testify that there are no published guidelines at
present that would assist endoscopists in managing patients on anticoagulant
therapy during the period of time following a colonoscopy, and that most
endoscopists are therefore using their own judgment or criteria in managing
such patients.

47

This evidence would not have required the trial judge to reach a different result.
As a general matter, the article, and the expert's testimony, are based on a
survey to which only 38.5% of ASGE members responded, a response rate
which was described by the authors of the article as "less than ideal."
Moreover, the responses were based on generalized questions, such as the
length of time the gastroenterologists would wait before restarting Coumadin
after a therapeutic colonoscopy (i.e., one during which a biopsy or polypectomy
was performed) in patients suffering from conditions such as atrial fibrillation.
The answers to these questions are not definitive because they did not take into

consideration the particulars of a patient's medical history, even though the

experts testifying before the trial judge agreed that such particulars are
indispensable in determining the proper treatment to be followed. As for the
proposed testimony regarding the lack of published guidelines, the fact remains
that gastroenterologists cannot close their eyes to the standard of care
appropriate to other specialties when performing procedures within their own
that impact upon other specialties.
48

The trial judge heard testimony from specialists in hematology and

gastroenterology who indicated that Mr. Hassey should not have been kept off
Coumadin as long as he was, and explained in detail why they thought so. We
think it improbable that the proposed evidence would have resulted in a
different outcome.

II. Distribution of the Damages

49

Both the Administratrix and the Government appeal from the district court's
award of damages. The Administratrix argues that the district court erred as a
matter of both law and fact in denying Mr. Hassey's adult children's claims for
compensation under the Massachusetts wrongful death statute. The United
States, in turn, argues that the district court did not err in not awarding damages
to the decedent's children because they are adults who were no longer
financially dependent upon their father and are therefore not entitled to recover
under the statute. The Government also argues, however, that insofar as the
district court awarded damages to Mr. Hassey's widow, rather than to the
Administratrix, the district court acted without subject matter jurisdiction.

50

Section 2 of the wrongful death statute provides, in pertinent part, that:

51 person who ... by his negligence causes the death of a person ... shall be liable in
[a]
damages in the amount of ... the fair monetary value of the decedent to the persons
entitled to receive the damages recovered, as provided in section , including but not
limited to compensation for the loss of the reasonably expected net income, services,
protection, care, assistance, society, companionship, comfort, guidance, counsel, and
advice of the decedent to the persons entitled to the damages recovered.
52

Mass. Gen. Laws ch. 229, 2. Section 2 further provides that "[a] person shall
be liable for the negligence ... of his agents or servants while engaged in his
business to the same extent and subject to the same limits as he would be liable
under this section for his own act." Section 1, which independently provides for
a type of premises liability, 4 also specifies that:

53 the deceased shall have been survived by a wife or husband and by more than
[i]f
one child surviving either in person or by issue, then one third to the use of such
surviving spouse and two thirds to the use of such surviving children or their issue by
right of representation.
54

Mass. Gen. Laws ch. 229, 1(3).

55

"The plain language of the statute permits recovery for those losses akin to loss
of consortium." Schultz v. Grogean, 406 Mass. 364, 548 N.E.2d 180, 181
(1990). However, "the first clause of section 2 limits recovery to a class of
persons. It provides for recovery of compensatory damages by 'the persons
entitled to receive the damages recovered' and limits the class to those persons
'as provided in section .' " See Burt v. Meyer, 400 Mass. 185, 508 N.E.2d 598,
602 (1987) (adopting interpretation proposed in Guy v. Johnson, 15
Mass.App.Ct. 757, 448 N.E.2d 1142, 1144-45 (1983)). If the class of
presumptive takers, as defined in section 1, is to recover under section 2, they
must then prove that the decedent had monetary value to them. See Burt, 508
N.E.2d at 602; Guy, 448 N.E.2d at 1144.

56

We find no support in Massachusetts statutory or case law for the United States'
contention that adult children must be financially dependent upon their
decedent in order to be entitled to recover damages under section 2 of the
wrongful death statute. To the contrary, the plain language of section 1(3) of
the wrongful death statute makes the surviving spouse and children
presumptive takers without mentioning any requirement that they be dependent.
Moreover, the Supreme Judicial Court of Massachusetts has approved the
award of damages to relatives who were not financially dependent upon the
decedent. See Santos v. Lumbermens Mut. Cas. Co., 408 Mass. 70, 556 N.E.2d
983, 988 n. 10 (1990) (parents of deceased adult unmarried child may recover
damages under section 2 as "next of kin" for purposes of section 1); Schultz,
548 N.E.2d at 182 (same); cf. Bratcher v. Galusha, 417 Mass. 28, 627 N.E.2d
908 (1994) (father of deceased adult married child was not entitled to recover
damages under section 2 because, under section 1, the surviving spouse was the
only presumptive taker); Norman v. Massachusetts Bay Transp. Auth., 403
Mass. 303, 529 N.E.2d 139, 142 (1988) (noting, in dicta, that if child had died
rather than merely been injured, parents would have been entitled to recover
under section 2 for loss of consortium); Guy, 448 N.E.2d at 1145 (father of
deceased minor child was presumptive taker under section 1). Similarly, at least
one federal district court has explicitly decided that adult children are
presumptive takers in a claim under section 2 for the death of their parent. See
Knowlton v. Spillane, 137 F.R.D. 196, 197 (D.Mass.1991); cf. Poyser v. United
States, 602 F.Supp. 436 (D.Mass.1984) (mother of a minor daughter was a

presumed taker under section 1(4)).

57

Indeed, a situation identical to this case seems to have arisen in Burt v. Meyer,
400 Mass. 185, 508 N.E.2d 598 (1987). After the trial of the wrongful death
action brought by the executrix of the estate of the decedent, the jury awarded,
inter alia, $174,000 in compensatory damages for the benefit of the widow, and
$20,000 for the benefit of each of the decedent's four children by a previous
marriage. On appeal, the adult children of the decedent argued that the
distribution of an award under section 2 was subject to the constraints of section
1, which they claimed entitled them to two thirds of the entire award. The
Supreme Judicial Court rejected this argument, holding that a presumptive taker
is entitled to nothing beyond what it is proven at trial he or she lost as a result
of the decedent's death. More importantly, however, the Court affirmed the
original award to the children. Although the Court's decision does not
specifically state that the children were non-dependent adults, that fact could
fairly be inferred.5

58

Nevertheless, we affirm the trial judge's award of damages. The trial judge
heard testimony from all of Mr. Hassey's children as to their relationship with
him and the effect that his death has had upon them. The fact that the judge did
so even after the Government had vigorously argued that the children were not
entitled to recover under section 2 indicates that the judge correctly understood
that Mr. Hassey's children were presumptive takers under section 1.

59

After hearing the children's testimony, the trial judge still chose to award them
nothing. Upon reviewing the relevant portion of the trial transcript, we find that
it would not have been error for the trial judge to find that the loss suffered by
the decedent's children did not exceed such grief, anguish, and bereavement as
one may normally expect upon the death of a parent. As the Administratrix
admits in her brief, recovery under section 2 "was not intended to include
components of 'grief, anguish and bereavement of the survivors.' " MacCuish v.
Volkswagenwerk, A.G., 22 Mass.App.Ct. 380, 494 N.E.2d 390, 398 (1986).6

60

Finally, although the United States is technically correct in pointing out that the
trial judge should have awarded damages to the Administratrix, rather than to
Mrs. Hassey, the error is merely one of form. Pursuant to section 2 of the
statute, "[d]amages under this section shall be recovered in an action of tort by
the executor or administrator of the deceased." However, "the procedural
framework of the wrongful death statute, through which an administrator brings
an action on behalf of the next of kin, [does not make] each person who has
suffered consortium-like damages any less injured. To hold otherwise would
elevate form over substance, looking less at the question, 'who is injured,' and

more at the question, 'who is technically bringing the suit.' " Santos, 556
N.E.2d at 988.
61

The Supreme Judicial Court has therefore approved of verdicts awarding

different amounts to each person recovering under section 2. See Burt, 508
N.E.2d at 602 ($174,000 for widow and $20,000 for each child); Guy, 448
N.E.2d at 1145 ($37,786.06 for mother and $103.41 for father). Indeed, in Guy,
the Court approved of the decision of the probate judge to distribute the award
of compensatory damages obtained in a wrongful death suit in accordance with
the jury verdict.

62

The trial judge in this case, therefore, did not err in determining the specific
amount that Mrs. Evelyn Hassey was entitled to receive. Instead, the only error
he committed was to enter judgment in her name, rather than in the name of the
Administratrix. The error is easily corrected. We thus resolve to modify the
judgment to clarify that the nominal recipient of the award is the Administratrix
of the Estate of Alfred J. Hassey, for the benefit of Evelyn Hassey. Of course,
when the assets of the estate are distributed, the probate judge will distribute
the compensatory damages awarded in this suit in accordance with the trial
judge's findings.

63

For the foregoing reasons, we affirm the judgment entered by the district court,
as modified by this opinion.

Of the District of Massachusetts, sitting by designation

We set out the facts in the light most favorable to the trial court's findings of
fact. See Wainwright Bank & Trust Co. v. Boulos, 89 F.3d 17, 18 (1st
Cir.1996)

While the parties properly frame the discussion of the expert testimony offered
at trial under the rubric of Daubert, we note that the testimony did not involve
the admissibility of evidence based on novel scientific hypothesis or
methodology. See Moore v. Ashland Chemical, Inc., 126 F.3d 679, 688-90 (5th
Cir.1997); see also Commonwealth v. Gordon, 422 Mass. 816, 666 N.E.2d 122,
138-39 (1996). We note that the Supreme Judicial Court has adopted Daubert
"in concept," but unlike a federal court, it reviews de novo a trial court's ruling
on the admissibility of scientific expert testimony. See Commonwealth v. Vao
Sok, 425 Mass. 787, 683 N.E.2d 671, 677 (1997)

A claim under section 2 includes but is "not limited to compensation for the

loss of the reasonably expected net income, services, protection, care,

assistance, society, companionship, comfort, guidance, counsel, and advice of
the decedent." Mass. Gen. Laws ch. 229, 2
4

Liability under section 1 is imposed when "the life of a person is lost by reason
of a defect or a want of repair of or a want of a sufficient railing in or upon a
way, causeway or bridge, the county, city, town or person by law obliged to
repair the same shall, if it or he had previous reasonable notice of the defect or
want of repair or want of railing, be liable in damages not exceeding four
thousand dollars, to be assessed with reference to the degree of culpability of
the defendant. " Mass. Gen. Laws ch. 229, 1 (emphasis added). Until 1975,
damages under section 2 were also assessed with reference to the degree of
negligence of the defendant. Since the 1975 amendment, however, damages
under section 2 are assessed with reference to the "fair monetary value of the
decedent to the persons entitled to receive the damages recovered." As the
Massachusetts Appeals Court noted, one "can surmise that when [section] 2
was revised to introduce the compensatory principle of recovery, less than
enough attention was paid to the compatibility of [section] 1." Guy v. Johnson,
15 Mass.App.Ct. 757, 448 N.E.2d 1142, 1144 (1983). That lack of attention has
given rise to some of the interpretive problems discussed in the text above

The four children are full siblings. The two male children's surname, like their
father's, is Meyer, but the two female children's surnames are Burt and Croteau,
respectively. The most likely explanation for this discrepancy is that the two
female children were married. If so, they were adults and thus presumably no
longer financially dependent on their father

The Appeals Court noted that although the version of the wrongful death
statute that was originally passed by the Massachusetts legislature provided for
recovery of fair compensation for grief, anguish, and bereavement, that
provision was deleted from the bill before it was signed into law. See
MacCuish, 494 N.E.2d at 398-99