-: SJC-13577.
Steven Luppold versus Susan Hanlon et al.
-: Okay. Attorney McDonough, whenever you're ready.
-: Thank you, Madam Chief Justice.
And may it please the court.
Miles McDonough with me is my partner, Christopher Riley.
We represent the defendant (indistinct) Susan Hanlon.
Your honors I intend plan to spend most of my time
on the new trial issue concerning
the denial of cross-examination concerning bias associated
with the high-low agreement.
Before I do that, I just wanna spend a minute,
or two on the other new trial issue that the issue
concerning the, so-called model instruction
of the Superior Court on causation.
There are just two or three points
that I wanna just quickly hit on this.
The first is that the district court in May of 2024,
updated their instructions on causation.
I did, they did it in premises liability and motor vehicle.
And in both of those sets of instructions,
they assiduously avoided the word impact.
They did not take the path
that the superior court form instruction takes.
And I submit they did that
for the reasons we were argued in the brief.
Second point is that we do ask the court's consideration
of the jury question that was raised in the McDonough case,
no relation that came out of Middlesex County as well.
That's an example of
what we submit is going on out there
in the jury deliberations rooms.
There's a lot of confusion created by this instruction.
That instruction, that request for clarification
was denied by the judge in that decision
that's up on appeal in a different matter.
But the jury was obviously very focused
and wrote a very cogent note pointing out the conflict
between the had no impact prong
of the third paragraph of the instruction,
and we have it on page 19 in our brief
versus the other prong of the instruction
that tells the jury when the defendant
is supposed to win on causation.
The second prong is the dual test.
Of course, we have no problem with that.
That is what should be done.
It's the first prong that's problematic.
And that what I'd like to do is also just quickly touch on
what I would call the end run problem of this instruction,
the pratfall problem, if you will,
the instruction can lead a jury
to find for the plaintiff on causation
where dual would mandate a defense finding on causation.
Here's the problem,
because of the way the instruction is phrased with that,
and in between it's conjunctive,
the jury could look at the first prong,
the impact language did the, poses the question,
it says if the defendant,
these two things happen, the defendant wants on causation.
If the negligence of the defendant
quote had no impact on the result, that's the first prong.
The second pro is-
-: That's not exactly what the instruction says, right?
It doesn't say had it further defines what no impact means.
I can't pull it up right now.
-: No, your Honor.
The third paragraph says,
if a defendant's negligence had an impact
on Steven Luppold's injuries,
and this parallels the model instruction,
then it caused those injuries.
But if this is the problematic language,
but if the negligence had no impact
on Steven Luppold's injuries
and the result would've happened anyway,
that's dual- -: And the result
would've happened anyway, right?
-: Right. That's dual.
We have no problem with that,
-: Isn't it defining the first part?
I'm not saying it's artfully done as it could be,
but isn't it clear that it's defining
what the had no impact means?
Meaning it had no result?
No, it didn't affect the result.
-: Well, no, I don't think so, your Honor,
it's reading it top to bottom, left to right.
It's setting forth two requirements
with the conjunctive
and the plaintiff's position on this essentially
is suggesting that there's a redundancy here.
So, no, I don't agree with that point at all.
And I think there's a real danger here because a jury,
obviously the McDonough jury had a problem with it.
They saw conflict in it.
I think any reader could find conflict in it.
And the upshot is, the danger is
that the jury could stop on that first element
and say, there's two things for the defense to prove here.
The two requirements for the defense to prevail
and causation, the first requirement is had no impact.
Impact means any effect of one thing on another.
The jury could very well think
and may have thought in this case
that Ms. Hanlon's preceding negligence had an impact,
if only in the slight sense
that it slightly increased the chance
that the second defendant,
Mr. Loucraft or the other fellow
that negligence caused the harm.
So there's a little bit of mental gymnastics.
-: So in your mind,
the solution would be to change the word and to meaning?
-: The solution, your Honor,
is to cut out the third paragraph,
get rid of-
-: But alternatively, we could change
and to meaning,
it's as Justice Kafker was saying,
it is the no impact means it had no effect.
-: I still think you're throwing in unnecessary language,
your Honor,
I could still see a jury being confused by the word impact.
It's inherently vague and confusing.
So I don't think that that would solve the problem.
-: So your solution is cut out the entire paragraph?
-: Just do what dual said,
like the district court judges are doing,
just stop with the but for causation instruction,
end of story, it's simple.
And I think is that would be helpful to jurors.
Jurors, let me, your Honor,
let's turn to the other new trial issue.
The plaintiff takes the position that
the reasonable right of cross examination for bias,
particularly here associated bias associated
with a high-low agreement,
does not exist in the civil jury trials.
That position I submit fails for at least three reasons.
First, the genesis of that right, is civil law.
It comes from the Day versus Stickney case
that is cited by no less than six of the decisions.
The SJC decisions in the notes.
-: Well, you know, in the civil trials
I presented over involving in these parties,
in (indistinct), there's lots of examination over bias.
-: Yes, absolutely. -: It's rife with it.
-: Absolutely. -: I don't know
the absolutist position here.
-: Well there's bias.
My point is bias, because bias does arise in civil cases.
-: Every expert witness, we've got 10 minutes unbiased.
-: Right. And I think that supports our point here
that the Massachusetts guide is correct
in applying the right, in both this criminal
and the civil context.
-: Well, here's the issue I had when I read your brief,
you say it's as of right and it can't be diminished,
but when I read 611B2,
it says reasonable cross-examination show bias
and prejudice is a matter of right.
And you stop there,
but then it says, which cannot be unreasonably restricted.
-: Your honor, you've jumped ahead to my next point
that what does reasonable mean in context here?
And we have the answer.
I do want to just mention two other things.
Article 15 means for the reasons of the brief,
we have to have this exist in the civil side as well.
And it's absurd to say that in the civil side,
we should be satisfied with a less satisfactory truth
telling mechanism.
Cross-examination is the best truth telling mechanism,
particularly on bias and credibility.
Wendlandt: Well, no one's suggesting
there was no cross-examination, right?
-: I'm sorry, your Honor. -: No one is suggesting
that you were prohibited from cross-examination.
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 Loucraft had created
between his trial testimony on either day,
or the deposition testimony years before.
-: And for both, this is gonna be able
to answer both questions at the same time.
If we look at the question of what reasonable means
in context, that'll address your Honor's question as well.
Because the test for entitlement as of right
to the as of right part is
provided in the Aguiar case that cites back
to the civil case that I just mentioned.
The threshold inquiry a judge should be mindful of is,
it's a might test. A could have test.
So if you look at 400 masks at page 513,
that's what I'm talking about.
And it cites Stickney for this.
Days versus Stickney for this proposition as well.
It's a potential bias.
If there's any indication in the evidence,
or in the circumstances that there might have been bias,
that's what triggers the right to cross on it.
-: This more- -: And your Honor,
it was the failure of the judge
to let cross-examination happen on the bias
arising out of the concept of a high-low.
And there are three types-
-: Reasonable restrictions would include
important into a trial, the word settlement, right?
-: The reasonable as a general proposition, your Honor,
settlements can't be excluded
under the discretion of a judge
balancing probative and all that.
That's not this case.
This case has inherent,
and again, this is getting to the same point I wanna make.
There are three at least that I can offer to the court.
Three inferences that arise as a matter of law
from the mere utterance
of the words high-low in front of a trial judge, okay?
Let me give you three examples.
Number one, there's a quid pro quo inference.
This is the most important thing
that a defendant needs.
Kafker: I get it when it's a Mary,
whatever the Mary Ellen agreements where-
-: Mary Carter. -: Mary Carter,
where you shift the,
you shift the responsibility to the other defendant.
But this is high-low is you're just bracketing,
it's totally different.
McDonough: It's not totally different from-
-: And also I read your, the excerpt for the trial.
You don't ask the judge to sort of dig in here.
You just say there's a high-low,
and then I'm not even sure what what your objection is
at that point.
-: Oh, your Honor, first trial counsel did mention
the fact that there were opinions that had been offered
that had attacked his clients, number one.
Number two, he mentioned the high-low.
I'll get into the inferences that I wanna discuss
to show that there's inbred inherent bias in a high-low.
And number three, he mentioned the insurance problem, okay?
So there was plenty on the table
for the judge to understand there's a problem.
-: You can follow exactly what the trial counsel
objection was there.
But I mean, it's pretty incoherent, isn't it?
-: Oh, your Honor, there's a typo that said, get him to bias.
Obviously what he was saying was get into bias,
and it was on the heels of that cross
of those adverse opinions that had been offered.
And so it's not, it wasn't unintelligible at all.
He said, I'm looking, he mentioned bias.
He specifically, he mentioned the high-low,
the nexus between the two
is something that I submit
should have been obvious to the judge for these reasons.
Number one, there could be a quid pro quo,
not only the high in exchange for the low,
but also the high in exchange for the low,
and also maybe getting some help
from giving some help to the plaintiff.
Remember, this is a desperate time for this defendant.
He needs his house protected, he needs his assets protected.
-: Can I just, this is Mr. Kelly, right?
That's the trial count.
-: Yes, your Honor. -: Mr. Kelly,
the reason I ask to be seen, your Honor, is the original,
more than, more the prior testimony in getting him to bias
of this witness and giving those opinions about the nurses
because of his circumstances with his company
and with a high-low agreement,
I'd like to be able to inquire of that.
I don't know what he's saying.
-: Well, let me explain your Honor.
Him, change him to into, so he wants to get into bias.
The context is at the time
he had just the record will show
that there were opinions attacking his clients,
and there were changes in testimony
that align with the changes in interest
created by the high-low.
Wendlandt: What do you have those changes? Why?
-: Let me give you a few, your Honor,
and I do wanna circle back to the nature of the high-low,
why there's inherent bias in it.
But let me give you the references.
Volume three pages 150 to 151.
That's Mr. Luppold saying at first,
I'm sorry, at his deposition, he said,
"I don't remember any conversations with Ms. Hanlon."
And then at trial,
at page volume three pages 116 to 117
and 120 to 121.
He says, now I remember when she was discharging me,
I told her my foot's swollen, my foot's purple.
Does that make any difference?
And she supposedly said to him,
you are being discharged, totally-
-: So those are the changes in the plaintiff's testimony?
-: Which is part of the problem here, your Honor,
is because the plaintiff, after giving the high-low,
the benefit to Loucraft, what's his financial motive?
He has to turn his gun sites against somebody else
who doesn't have the cap, but has assets.
He's looking to recover money.
-: And that change in the plaintiff's testimony,
you identified for the trial judge,
so that the trial judge could make this informed decision.
-: I don't know that that was spoken about
at that precise time, your Honor,
but I know it's part of the record
and the judge is supposed to be,
but let me address it was, I'm sorry.
-: You expect the trial judge to know
what the plaintiff testified to at deposition?
-: Because it was brought out
on the trial record, your Honor.
Gaziano: Right.
It's part of the regular cross examination anyway.
-: Right, right, right. But-
-: You want another inference apart from he's lying now
we want a different inference
that he's lying because of the high-low.
-: Exactly. Right. -: Versus he's lying,
'cause he wants to win.
-: And because of the high-low and most particularly
because of the high-low,
that's the real alignment of the interest, your Honor.
-: And question I have for you factually is if you know,
was the high-low entered into
before the plaintiff took the stand,
so that it would have the impact that you're suggesting?
-: What we know is the high-low
was mentioned right before trial.
It might have been mentioned years before.
We don't know because
there was no cross-examination allowed. But you honor-
-: So instead of saying what you don't know,
can you tell me what the record shows?
-: Yes. -: In terms of when
the high-low was entered into relative
to when the plaintiff took the stand?
-: Yes, your Honor,
according to the plaintiff's representation
at the post-trial hearing,
it happened sometime between the 10th and the 21st.
-: And was that before the plaintiff took the stand?
-: The plaintiff testified on the 13th.
I believe those are the window dates.
But Mr. Loucraft, I mean,
let me get to the Loucraft stuff, your Honors.
Volume two pages 574 to 575.
At that point, Loucraft, in his deposition,
Loucraft had testified
that he did not read the triage note,
which was important because of the reference
to the cool foot,
it was critical on the diagnosis.
At trial,
I'm sorry, that was on March 10, that was during trial.
He said, I don't recall,
I don't recall if I read the triage note,
on March 10.
11 days later, same trial after the high-low.
He says, "I did not read it.
"It was an important step that I skipped
and it violated my own custom and practice." So he-
Kafker: Was it a cross-examination
on all these inconsistencies?
-: Was it a cross examine?
He he was being led by plaintiff's counsel.
-: On cross-examination. On cross-examination,
did all, I mean,
my understanding based on the briefing,
and I haven't read the transcripts yet,
is none of these inconsistencies were pointed out.
-: Your Honor and I think,
I don't think that it's-
-: Really, it's a fact question.
McDonough: I'm sorry, your Honor.
-: It's a fact question.
Were the inconsistencies explored in cross-examination?
-: There were some inconsistencies
explored in cross-examination, your Honor,
I can't recite for you-
-: Were these inconsistencies that you say are relevant
to the high-low agreement,
where they explored in cross-examination,
were brought out in examination?
-: Luppold certainly was, your Honor.
I believe Loucrafts were, all right?
But in any event,
the judge went back to the deposition transcript post trial.
Kafker: I'm gonna stand up and say the opposite,
you sure of that?
Just to save us some time. Are you just speculating?
-: I'm not speculating, your Honor,
I'm trying to recall as to the,
I can give you the record citation at that-
-: Well, but wouldn't that be important
because you're beginning at the point of saying
that you have this right to do so.
But it does it back to Justice Gaziano point,
the reasonableness of curtailing the cross-examination
in the judge's discretion.
That all of these things were,
the inconsistencies were explored on cross-examination.
So you're looking for a different type of exposure of bias
or lack of credibility where the counsel at trial
could get into your testimony
is different from your deposition
versus a trial without getting into the high-low agreement.
And so you're looking for something different.
But how is that an abuse of the discretion
or an unreasonable thing for the trial judge
to have done.
-: Under Aguiar and I believe other cases, your Honor,
the trial judge has zero discretion
to totally cut out cross examination on the subject.
-: He didn't. -: He did.
There's no reference.
He said, quote, we are not getting into any of that.
We're not getting into any of that.
Meaning cross on the bias. That's the whole point here.
-: So you're talking about subject matter,
you're not saying that the trial judge curtailed
any cross examination into all of the other things
that might impact the witness's credibility?
-: Oh, that's not the point, your Honor.
The point is the bias. -: Well, that's my point.
-: No, I understand. I understand.
And I'm not saying there wasn't other cross-examination
on credibility issues in the trial by any stretch,
there always would be some, that's not the point here.
The point here is the bias,
bias is special.
It's not like a settle,
a routine settlement agreement like
in the Mitchnik versus Zilberman case.
Bias is the most important thing that jurors deal with,
bias and credibility.
It goes to the heart of the right to jury trial.
-: Counsel, sorry, could,
our time is really limited.
Could you possibly please take a moment
to finish your answer that you got interrupted in
before about you were, I think gonna say three
-: Yes, your Honor. -: main problems
with these agreements in terms of the kinds of
-: Yes. -: things that you might
be concerned about.
And you started by saying it theoretically
could be a quid pro quo.
What else did you wanna say?
-: Yes. And the quid pro quo, including not just the low,
but the potential for helping the other side.
The second is,
it could be even if there's not a contractual element to it,
and the quid pro quo, by the way, could be written or spoken
or wink in an odd.
The other aspect, the second is,
if not contractual in nature,
it could be simply considered a favor.
Again, this goes to the point of how important
a high-low is for somebody, a defendant in these cases.
It's everything, okay?
So if he gets this gift,
this benefit from the plaintiff,
he is by definition virtually favorably disposed
to someone who gave him the biggest favor in his life.
Even if that's all there is to it, that's bias.
That's fairly explorable precisely.
-: That's totally speculative. We have no idea,
nor do you what that high-low agreement.
It could have been,
he could have agreed to a huge amount of money, right?
-: Right.
And it's a high, and it's a high, it's a cap.
It's a liability cap, okay?
And by the way-
-: And also it's a low too, right?
-: Right. -: He could agree
to pay a certain amount no matter what, right?
-: But the prejudice, the bias here arises out of the cap,
the high cap, your Honor.
Budd: Can we get to the third?
-: The brass ring to get the protection of it.
Budd: Okay. Let's get to the third thing
that you were saying quickly.
-: The third, your Honor, I would submit is a defendant
who gets a high-low is going to be emboldened by reason
of specifically the cap, whatever the number is.
It doesn't matter.
And we know high-lows are going to be, you know,
there's a high and a low, there's a range.
It's not the ultimate exposure on the case,
so it's to protect.
And the defendant in that context
is necessarily financially biased
and moved to be embold can be moved.
-: Well, doesn't it depend on what the range is?
If the high-low is I will pay you a minimum of $39,000
and a maximum of $40,000.
-: Then that's probably- -: Then there's very
little incentive.
-: That's very suspicious, your Honor,
'cause that's just keeping that defendant in the case
to tattoo the other defendants.
-: Well, isn't that part of the question then?
-: Well, that's another piece of information
that would the judge ruled
was not gonna be available to the defense.
And that would've been very valuable information.
-: Well, was there a request to the judge here
to get a disclosed to the defense, the precise term,
the co-defendant, the precise terms of the settlement?
-: Well, there was a cross-examination.
He went up the sidebar and said, your Honor,
I wanna cross on this.
He wanted to take them on,
get the benefit of cross-examination,
which is instantaneous immediate responses, spontaneity.
Nobody gets a dry run. Go right at it.
And that's why once you cross that threshold
and you have a might situation-
-: But I'll defer to my college,
it's matter of trial justice.
But isn't it an offer of proof?
You've gotta , your Honor, we need to,
this could be a fishy high-low.
There could be something sinister here.
We wanna make an offer of proof on this.
None of that's happened.
-: Well, in Monday morning quarterbacking, you know,
you can always ask, could that have been done?
-: But no, it's not Monday morning quarterbacking.
Because there's also an obligation that council has
to have a good faith basis to ask the question
that they're asking.
So without an offer of proof
or asking for voir dire, when you say all they,
he could have had this,
he could have had been motivated by that,
potentially could have been motivated by that.
All of these don't satisfy a good faith basis
to the trial judge to even ask these questions.
-: Your Honor the good faith basis is satisfied.
Once he has the might,
there might be bias afoot, test satisfied.
That's what triggers the right.
This is not like a standard settlement agreement.
You can't do an offer of proof
in the traditional sense in this context. Why?
Because the information is hidden from you.
You have the cross examiner-
Georges: Could ask for a voir dire.
-: I'm sorry. -: You could ask
for a voir dire.
-: May have been able to ask,
but if he wants to cross examinee,
he has the right to cross examinee, your Honor.
He doesn't, he's not, if he had to do a voir dire,
if he had to do a voir dire,
it would not be a matter of right.
That's inconsistent logically,
he has the right to cross examine not only upon-
-: I think we've covered it.
-: All right, your Honor if there's any issue about
the emboldening as the court to consider that too,
as to what would happen -: Thank you.
-: with such an agreement. Thank you, your Honors.
-: Okay. Attorney Satin.
-: May it please the court.
My name is Adam Satin
and along with Robert Higgins,
I represent the plaintiff in this matter.
I naturally, as you might expect,
prepared where to start and go at least as far as I got.
But just briefly, where Mr. McDonough started
on the dual issue,
that McDonough case is a different set of instructions
to a different jury under different facts.
It is not a part of this record,
was not part of any of the briefing.
They made a motion. It was not allowed.
-: How about the language itself?
Is it, should we,
is this is the district court
instruction a better instruction,
'cause it avoids potential confusion or not?
-: Respectfully, as I recall,
they didn't brief the district court instruction.
So with all due respect the instruction
that the model superior court instruction
based on a committee of trial judges
who brought in a linguistic expert
to evaluate and try to use plain language for jurors
that they can understand,
they came up with essentially the instruction
that was given.
And Justice Kafker, you're absolutely correct that the
and that he's so troubled by
absolutely just defines what's to the left of the and.
-: But Justice Wendlandt's better articulation,
should we be clarifying that,
saying that meaning blank as opposed to
weaving it out there as an and given. But again-
-: So I would suggest that Justice Wendlandt's
comment about the wording
and saying meaning if you read it, if you hear it out loud,
that's what the and says, it says,
and just, it helps to hear it out loud,
that if a defendant's negligence had an impact
on Steven Luppold's injuries,
then it caused those injuries.
But if the negligence had no impact
on Steven Luppold's injuries
and the result would've happened anyway,
then that defendant did not cause the injuries.
-: Does the and clause really solve the problem though,
even agreeing with you that
and essentially means meaning that here,
if the problem with the impact word
is that it's so vague that it suggests that
a defendant could be liable if there was sort of
any contribution whatsoever,
no matter how slight to the extent of the injuries
and then the and clause then means that
the exact same injuries would not have occurred,
but, you know, but for,
so I don't know that it deals with that problem.
-: So, well, I don't think it's a problem
because it was drawn directly from the language
this court used in dual, excuse me, dual.
The dual court correctly said-
-: Well we, I mean we were moving away
from substantial factor, which was a vague language
that was causing some confusion here.
So I'm not sure we were counseling the trial court
to instruct with this impact sentence.
-: But the- -: Most of the opinions
devoted to but for construction, right?
-: And the but for construction was requested
by the defense in this case.
But the dual opinion says,
we don't judge these instructions based on fragments of it.
And that's what they're doing.
They're asking you to look at one sentence,
say it could have been better articulated.
And the reality is,
is that great was made to try and give
a plain language instruction.
-: Isn't some of the issues
that your opposing counsel is identifying
with the word impact
and it's breath solved by the proximate cause instruction?
-: So looking at,
I think that the instruction as a whole makes clear
what is necessary to find factual causation
as well as proximate causation.
It began with the defendant caused the injuries,
if the injuries would not have occurred without that is,
but for that defendant's negligence and then it goes on.
I mean that is the overriding principle from dual
and the jury got it.
This jury didn't ask a question.
This jury didn't have a problem, by the way,
medical causation was not greatly in dispute.
The only expert they heard on medical causation was ours
who said there was medical causation.
They wanna create this issue of,
well, it's really Loucraft and not Hanlon.
But the reality is,
is that the causation proof was absolutely,
this wasn't something where the facts would lead to,
she might have had a slight impact on the outcome.
The causation proof that Mr. Higgins got six ways to Sunday,
including with Mr. Loucraft,
is if she had delivered the information
she was supposed to deliver to Mr. Loucraft,
this wouldn't have happened.
He wouldn't have been sent home.
He would've been kept, he would've gotten an ultrasound.
-: This is a he said,
she said case essentially.
Wait, wait. She either gave the information,
or didn't give the information?
-: I think it was pretty undisputed that
she didn't give the answer.
-: But that was the dispute. -: Fair.
And I do want to get to the high-low portion
while I have time, if I may.
But I'm happy to answer your question
on that Justice Gaziano,
but it really was not a close call on causation.
It was factually,
did she have responsibility to deliver that information?
And once she did,
the evidence was this would've been avoided
and the amputation would not have occurred.
On the high, if I may.
On the high-low issue,
this court has long favored settlements
and tried to have policies
that favor and encourage settlements.
The use of high-low agreements,
particularly in medical malpractice cases
where damages can be quite substantial,
has allowed parties to proceed to the verdict
with each party to the settlement,
maintaining their effort to win the case outright.
And those have been widely used
because it benefits everyone.
I someone mentioned bracketing, I think Justice Kafker,
this allows the plaintiff to guarantee some measure
of compensation for what has happened for them.
It allows the defendant
to protect against seizure because the high level, which is-
-: And incentivate the plaintiff to go after
the non-high-low settlement defendants, right?
-: Well, that was just mentioned.
And with all due respect to Mr. McDonough,
Mr. Luppold always had his sights on the nursing, always.
He brought the case, he pursued the case.
He wanted to win the case.
Mr. Higgins said no fewer than five times,
they're all responsible.
The jury agreed as to three of the defendants.
The jury thoughtfully acquitted a couple of the defendants.
But the reality is,
is there was no,
someone said it, Mr. Luppold's incentive
was to win the case.
-: But when he changes,
the plaintiff changes his testimony from the deposition
where he doesn't remember telling anything to Hanlon
to suddenly remembering clearly at trial
after the high-low that he specifically told her,
what about the discoloration?
-: There's actually nothing in the record
to say that that was after the high-low.
And the record is unclear about that.
That having been said, this was a plaintiff who explained
to this jury that when crossed by,
it's the one thing Mr. Kelly crossed on
was that you said one thing
and now you're saying that you remember this.
What Mr. Luppold said is,
it's been a long time,
I see her in the court, I remember this.
Jury could assess his credibility in that regard
and did, I would suggest
and they rendered their verdict to answer.
-: It can go both ways.
I mean the presentation was,
it only helps to enhance the incentive to point the finger.
But doing that could also work against the person
pointing the finger,
where the jury could say
you're trying to bury the other defendant.
So there can be another component of tales to
the high-low coming out as well.
-: I maintain again from the second Mr. Higgins
gave his opening statement.
The sites were on the nurses,
they were also on Mr. Loucraft.
And frankly that's why this case
was such a clear cut case of responsibility.
Mr. Higgins had the benefit of being able to say,
look, the only person whose fault this
isn't as Mr. Luppolds, he went,
he reported certain important limb threatening conditions
or symptoms I should say.
And nobody assessed it. No one talked to each other.
And he said it was Mr. Loucraft's responsibility
and he said it was the nursing response.
-: One thing I'm confused about,
does Mr. Loucraft do a physical examination
of the plaintiff?
Wouldn't he see that the foot is purple?
I'm confused by this.
-: The way that these cases are defended,
it can be confusing because
what Mr. Loucraft talked an awful lot about is,
well I don't remember this, but what my usual custom
and practice would be to do is,
well of course I looked at everything head to toe.
His actual medical record, which you have,
doesn't say anything about the feet.
He interprets the medical record.
The jury was free to accept his interpretation,
reject his interpretation.
But that record does not say,
I looked at the foot, the foot is fine.
It doesn't say the pulses on the foot is fine.
It says something about the skin.
It says something being warm.
The skin, there's skin here too.
There are pulses in the upper extremities too.
There was nothing about the specific examination
of the foot and the jury would be well
within its province to believe that,
since Mr. Loucraft had told them that
he thought the whole issue was back pain,
that had someone brought this critical information to him,
you would've seen a heck of a lot more in that note
about an examination of the foot.
You would've had information that's now not there.
They could've accepted that, they might not have.
-: Was the argument that
Hanlon needed to cross examinee on the high-low
because the plaintiff had changed his testimony
to now point the finger more directly at her?
Was that ever raised to the trial judge?
-: It was not your Honor.
In fact, there was no suggestion at any time by Mr. Kelly
that the high-low impacted Mr. Luppold's testimony.
Mr. Kelly never asked to recall Mr. Luppold
in light of this information about the high-low,
as justice Kafker mentioned, it's not remotely clear
what Mr. Kelly was telling the judge
was the significance of the high-low as to bias.
And if I may, the cases cited on our brief.
Criminal cases,
we can put aside whether cross-examination on biases
is as important and civil as it is.
It's important, do we do it all the time?
But the reality is, is that the criminal cases,
Commonwealth versus Bui, B-U-I,
Common Commonwealth versus Sealy,
Commonwealth versus Meas,
each of them has facts that are absolutely consistent
with what this judge did
and they say this court has said multiple times,
the proponent has to make a plausible showing
of the bias that they're claiming
in order for the judge to make a reasonable finding
that they may have it.
That's just basic trial law to suggest that
there is no discretion-
-: Without of voir dire or an offer of proof showing
that this is more like a Mary Carter agreement
than a standard high-low agreement.
And that the plaintiff has changed his testimony
between the time of,
he's first testified and later testified
that the judge can't evaluate this
in any meaningful way. Is that true?
-: And to your point, the Colloquy consists
of Mr. Kelly saying two things.
The absolutely, to me uninterpretable thing that says bias,
whether you say into bias or not into bias.
It doesn't clearly say why he thinks
that high-low agreement is relevant to this case or to bias.
And then he says he changed his testimony,
'cause his company is in rehabilitation.
He said bankruptcy, it was corrected,
but specifically they said-
-: Meaning the Loucraft's insurance company
is in rehabilitation.
-: Correct. -: Right. Okay.
-: And with respect to change testimony,
the judge immediately says, hold on.
He said the same things in the deposition.
How did the judge know that?
Because Mr. Higgins had crossed Mr. Loucraft already
in the case and used his deposition extensively.
It was three and a half years earlier,
and he said the exact same things.
You will not find any examination
by Mr. Kelly of Mr. Loucraft
where he brought one change
to the attention of the jury
simply as a prior inconsistent statement, not one.
-: Apart from change testimony,
I am wondering what you would meet,
what you would require the non-settling party
to include in a proffer
because they wouldn't know the terms of the high-low, right?
What would be the mechanism
by which they could make a proffer?
-: It would honestly be, first of all,
there's nothing in the record to show he ever asked
for any detail, frankly, about the high-low.
It's not a Mary Carter.
-: Would he be entitled to it if he had asked?
-: Certainly he can ask and the judge can inform as to,
and the judge can ask
and neither of them asked for details related to it.
In medical malpractice cases,
and this may be why, you know,
it's the high is usually the insurance coverage,
the low is some low six figure number to be candid.
And the verdict in between is the verdict in between.
It's to bracket and to protect both parties.
-: We can't judge that,
you're speculating as far as we're concerned,
you're just guessing too, 'cause we don't know.
Well we don't have,
it's not in our record with this high-low.
-: It's not in your record.
And that's because it was never heard, never asked.
Gaziano: It would ake sense, that's where the high is.
-: Right, that's the whole point.
That's why they're done.
That's why not only do plaintiffs like it,
'cause they guarantee some compensation.
They get to leave the justice system.
Whatever happens feeling that they had a measure
of compensation for their injury.
Defendants like it,
'cause they get to not have their home subject to seizure.
Insurance companies like it because they get to go to trial
and see if they in fact win
without taking that risk of their insured.
Everyone likes it.
You solicited amicus isn't brief
and you didn't get any counsel in the insurance.
-: Doesn't it work especially well
because they can be guaranteed of a low,
they can be guaranteed of some sort of recovery of plaintiff
and then they can go after
the other non-settling co-defendant,
full bore and focus on the person
who has not reached a settlement
and then also have, you know,
potentially an unleashed helper in that regard
in the form of a co-defendant who has settled
and who therefore can, you know, be helpful.
-: So that's important because
Mr. Loucraft was not an unleashed helper
because A, he said things three and a half years earlier,
no change.
But also when you read the transcript,
you will see he was not easy
with Mr. Higgins on day one of his testimony.
And he was equally not easy with Mr. Higgins
on day two of his testimony.
As to his own responsibility,
what didn't change at all between the two
was what he said about the nurses.
Simply I would expect them to provide that information
to me as the provider because it's so important.
-: So at a minimum for a proffer,
the defendant or the person trying to seek
to put in the high-low would have to show
that the non-settlement,
that the settlement party is helping out
in some way the plaintiff.
-: So there has to be some reasonable basis for the bias.
And the high-low itself doesn't provide it.
He's insulated now, he doesn't-
-: But that would be- -: The notion.
-: That would be indicative
or change testimony would be indicative of that.
-: It could be except there was none, but-
-: Right.
I'm talking about a case
where we're trying to set parameters here
and I'm trying to figure out where the parameters are,
where the judge abuses his, her discretion in this area.
-: Yeah, and just one thing if I may,
because the briefing I guess doesn't fully cover it.
Mr. McDonough, for the first time in the brief on appeal,
it was never raised before to the trial judge or otherwise.
He raised the concept of,
well now Mr. Luppold,
I'm sorry Mr. Loucraft can have the benefit of the high
and he can seek contribution
from the non-settling defendants.
With all due respect, as these agreements go,
as has been noted, this is about the insurance coverage
that he gets capped on.
He's not paying a dime, he doesn't have contribution rights
because anything that he didn't pay that's paid by a carrier
is subrogated to the right of the insurance company.
So consider what is- -: But we don't have
any of that in the record, right? We don't know.
-: No, because frankly, there's no evidence to suggest
that contribution had anything to do anything.
-: Can I go back to Justice Gaziano's question, which,
and this is really about this issue in general
and not the specifics of this case.
Do we, is there another context in which in order
to cross examinee on bias,
we require a proffer essentially to cross examinee on bias?
-: So your cases of the cases of this court that I mentioned,
Commonwealth versus Bui, Commonwealth versus Meas, M-E-A-S,
Commonwealth versus Sealy,
each of them have facts that essentially indicate that
voir dire not only is appropriate,
but was done in some of those cases,
or could have been done and wasn't as a factor
that they found was a good reason why they didn't need
to reverse the exclusion of the bias testimony.
But they also all say
that there must be a plausible showing of alleged bias
with factual basis for support
in order to allow you into that inquiry.
And frankly the judge has discretion in assessing
that plausible showing.
There just was none of any kind
and the judge was right on it saying,
he said the same thing before the high-low as he did after.
So what are we talking about?
-: So is your argument in essence that
a high-low agreement is not per se sufficient
in such a voir dire,
just the existence of a high-low is not sufficient,
but that if there were additional indicia
on top of a high-low, that could be sufficient?
-: Obviously if there is some good faith basis
as to the bias, if it's made to the judge
and the judge in his discretion allows the inquiry,
that would be a very different case from these facts.
-: Right, so for example, if he had said at his deposition,
Hanlon did not tell me anything or the opposite,
Hanlon told me about the note
and then at trial day two he says she didn't.
Well then you could get into the high-low?
-: If the offer is made,
and the judge, this is very similar to the-
Kafker: Is there another possible way,
-: Sorry. -: which is,
he falls on his sword
and doesn't he fall on his sword a little bit here?
Loucraft takes on more responsibility
in his later statements. He doesn't do that?
-: He does not. He actually,
he fights Mr. Higgins on his responsibility in both days,
day one and day two.
And frankly, you know,
I do want to clarify,
he makes certain admissions due to
skillful cross-examination using a deposition
from three and a half years earlier.
-: I thought you with in your closing,
if you were the trial counsel said,
and Mr. Loucraft stepped up and took responsibility,
meaning he fell on his sword a little bit.
-: Well, look, he had a navy veteran as a witness
who was very different as a witness
than the nurses in terms of credibility.
Nurse Hanlon was an abject of that disaster,
was never called back by Mr. Kelly
to defend herself in a direct,
never addressed the second day of ER care she delivered,
not once.
But in his closing, Mr. Higgins merely said,
look, did Mr. Loucraft stand there
and admit when I asked him
that he should have read the triage,
that he fell below the standard of care?
Yeah, he did. And that's refreshing.
But let's talk about what you got out of the co-defendants.
This is done all the time in malpractice trials.
You take something that is said that helps you
and you point out that the co-defendant
is not the same way.
He always said,
and this has been noted to be important
in other decisions, the ones that I mentioned.
He always said, but I'm not letting him off the hook.
He is responsible for this care.
And he was found responsible.
The courts that have decided these issues
where bias has been restricted, many of them say,
and there was other evidence
of the person's liability from other sources
to support the verdict.
The trial judge in post-trial motion said her liability was,
he had it seven different ways from Sunday.
He didn't say it that way, he said it in a way
that was similar to that,
her liability was apparent all over the place.
And so there is no basis to reverse this civil case
given the offer that was made,
the reasonable discretion of the judge,
the reasonable limitation when the general rule
is that these things are not admitted.