Supreme Court
No. 2024-66-Appeal. No. 2024-72-Appeal. (PC 12-1012)
Julie DeOliveira et al. :
v. :
Greg Trecaso et al. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. The plaintiffs, Julie and Maxine DeOliveira1
(Julie, Maxine, or plaintiffs), appeal from a final judgment entered following a jury
verdict in favor of the defendant, Star Insurance Company (Star or defendant), on
their action alleging negligence against Greg Trecaso (Mr. Trecaso), Star’s insured,
for a motor vehicle accident that occurred on Interstate 95 South in March 2010.
The defendant filed a cross-appeal alleging error in the trial justice’s decision to deny
its motion for judgment as a matter of law.
1 Because this case involves a motor vehicle accident during which both Julie and her daughter, Maxine DeOliveira, were allegedly injured, we use each person’s first name for clarity. We intend no disrespect. -1- Because we conclude that the trial justice did not err in denying plaintiffs’
motion for a new trial or in any other respect, and accordingly affirm the judgment,
we do not reach the merits of defendant’s cross-appeal.
Facts and Procedural History
A description of the pertinent procedural history and a brief summary of
testimony and evidence relevant to this appeal follow. Additional facts relevant to
the specific issues identified in plaintiffs’ papers appear in the discussion of the
issues.
Julie initiated the instant case on behalf of herself and her then-minor daughter
by filing a four-count complaint against Mr. Trecaso and Greg Trecaso d/b/a GCT
Transport alleging that Mr. Trecaso negligently operated his motor vehicle and
caused a collision with Julie’s vehicle on Interstate 95 South in Cranston, Rhode
Island, on March 25, 2010. Shortly after filing her complaint, and before Mr.
Trecaso filed a response, Julie amended the complaint to add Star Insurance as a
defendant. Star’s answer admitted that it insured Mr. Trecaso, but otherwise denied
the allegations in the amended complaint. In addition, Star asserted a counterclaim
for indemnification against Julie, who was driving on the day of the accident.2
Maxine turned eighteen during the course of the litigation and was thereafter
2 Julie was represented by a different attorney for Star’s counterclaim. We refer to this attorney as “counterclaim counsel” for clarity.
-2- substituted as an independent plaintiff. Meanwhile, Mr. Trecaso and Greg Trecaso
d/b/a GCT Transport were dismissed from the case because plaintiffs failed to
effectuate service.
Prior to the commencement of a four-day jury trial in September 2023, the
trial justice considered and denied plaintiffs’ motion to exclude the introduction of
a video deposition of Mr. Trecaso. In their motion in limine, plaintiffs argued that
the trial justice should prohibit admission of the videotaped deposition because the
court lacked personal jurisdiction over Mr. Trecaso, who had been dismissed from
the case with prejudice. The trial justice denied the motion and admitted the video
under Rule 32 of the Superior Court Rules of Civil Procedure, thereby rejecting
plaintiffs’ argument that the Superior Court lacked jurisdiction over him.
During their opening statement, plaintiffs played a recording of a 911 call
from an unidentified witness who reported, “I just saw a really bad car crash on 95
south * * * by exit 14 or so.” The 911 caller further stated that a tractor trailer
“flip[ped] a car” and that “the tractor trailer just smashed the car, I don’t know really
what happened, a tractor trailer smashed into a white car.”
Julie then testified that she was “driving straight” on Interstate 95 South on
the date of the accident when she “noticed [a] truck coming on from [the] Jefferson
Boulevard [on-ramp]. And then * * * like out of nowhere, I just felt a pull on my car
and a thump, thump, thump. And I lost total control of the car.” After colliding with
-3- the truck, Julie stated that she crossed several lanes of traffic, hit the wall separating
the north and southbound sides of Interstate 95, and “tipped sideways, like, upside
down.” Julie testified that the truck with which she collided “was coming onto the
highway to the lane that I was going to go [into]” but that she did not see the truck
enter her lane. Julie testified that she was eventually pulled from the car by
emergency services, at which point she noticed an injury to her shoulder. Julie
explained that the injury to her shoulder ground her world to a “halt” and required
the aid of several certified nursing assistants. On cross-examination, Julie was
impeached with evidence of her medical history which reflected a lack of
cooperation with various members of her medical team, inconsistencies in her
responses to interrogatories and deposition questions when compared to her trial
testimony, and evidence of a volatile relationship with her daughter in the months
following the accident.
The plaintiffs next introduced a partially edited version of the video recording
of Mr. Trecaso’s deposition notwithstanding their pretrial motion in limine to
exclude the deposition entirely.3 Mr. Trecaso testified that he was driving his truck
in the second lane from the right when he saw Julie’s car come up on his left-hand
side “with a right turn signal on.” Mr. Trecaso explained that he heard a “crunch,
3 A transcript of that testimony was marked as an exhibit for identification reflecting redactions ordered by the trial justice. -4- and [he] look[ed] in [his] mirror and [saw] this car going off to the left toward the
median and hit the Jersey wall.” Mr. Trecaso stated that he was not changing lanes
at the time of the accident and that he had been in the center lane “most of the way
through town.” Mr. Trecaso further testified that, after getting out and inspecting
his truck, he surmised that Julie’s car “hit [his] tires.” Mr. Trecaso testified that he
was traveling in the second lane at the time of the accident and that Julie’s car was
“coming into my lane.”
The plaintiffs also called Maxine as a witness. Maxine testified that she “saw
a big truck coming. And then all of a sudden, it just -- just boom. Just felt this just
big push. And that’s when we just went across the lanes.” The plaintiffs’ attorney
asked Maxine whether Julie left her lane of travel before the collision, and Maxine
responded “no.” The plaintiffs’ attorney then asked whether the truck had come into
their lane of travel, to which Maxine responded, “That was my understanding. It
looked like that’s what he was doing. And it’s just -- it was just a split second of him
moving over and ‘psht’, hit us.”
On cross-examination, Star’s attorney presented Maxine with a photograph of
her mother’s car from the date of the accident and asked whether she could identify
an on-ramp in the vicinity of the car in the photograph; Maxine responded that she
could not see one. Star’s attorney then asked Maxine whether her mother’s story
about Mr. Trecaso entering the highway from an on-ramp could have been mistaken;
-5- Maxine did not directly respond. Star’s attorney also asked Maxine to confirm
whether, at her deposition, she stated that she had not seen the collision itself;
Maxine responded that that was her testimony. Following Maxine’s testimony, and
the testimony of two witnesses whose statements are not pertinent to the instant
appeal, plaintiffs rested. Star’s attorney subsequently moved for judgment as a
matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure;
the trial justice reserved ruling on that motion.
Star’s only witness in its case-in-chief was Trooper Lisa Hanley of the Rhode
Island State Police, who investigated the accident. Trooper Hanley testified that,
upon arriving at the scene, she located Julie’s car about 200 feet north of the
Jefferson Boulevard on-ramp. Based on information she gathered from individuals
on the scene, she determined that Mr. Trecaso was not entering the highway from
the on-ramp at the time of the accident. Trooper Hanley then read the narrative
summary of her police report into the record. The report indicated that Mr. Trecaso
was traveling south, and that Julie’s vehicle was in the process of changing lanes,
when the rear passenger door of her car sideswiped the front fender and tire of Mr.
Trecaso’s truck. Both plaintiffs’ counsel and counterclaim counsel cross-examined
Trooper Hanley, largely questioning the thoroughness of her investigation.
Immediately prior to a short rebuttal examination of Julie at the close of Star’s
case, Star renewed its earlier motion for judgment as a matter of law. The plaintiffs’
-6- attorney additionally raised certain objections to the verdict sheet and to statements
made during Star’s closing statement. The jury subsequently returned a verdict
finding that neither Julie nor Maxine proved by a fair preponderance of the evidence
that Star was negligent.
Julie and Maxine thereafter filed a motion for a new trial alleging a host of
errors. The plaintiffs’ motion for a new trial and Star’s renewed motion for judgment
as a matter of law were heard at two separate hearings before the trial justice. The
first, in late September 2023, concerned defendant’s motions for judgment as a
matter of law. We do not address the substance of those motions in deciding the
instant appeal; we note, however, that the trial justice denied the motions on the basis
of judicial estoppel. The second hearing, held in October 2023, addressed plaintiffs’
motion for a new trial, which the trial justice denied. Both plaintiffs and defendant
filed timely notices of appeal. We refer to additional facts as needed in our
discussion of the issues.
Issues Presented
On appeal, plaintiffs present eleven alleged errors. They argue that the trial
justice abused his discretion in three ways related to the deposition of Mr. Trecaso;
abused his discretion in two ways related to Trooper Hanley’s testimony; and abused
his discretion in denying objections to defendant’s statements during opening
remarks and closing arguments. The plaintiffs also argue that the trial justice
-7- committed an error of law in both the jury instructions and the phrasing of the verdict
sheet and that he abused his discretion by overruling their objection when defendant
violated the empty chair doctrine. Finally, plaintiffs appeal the trial justice’s denial
of their motion for a new trial.
In its appeal, Star challenges the trial justice’s decision to deny its renewed
motion for judgment as a matter of law on the grounds that plaintiffs failed to meet
their burden of exhausting the possibility of litigating their claims directly against
Mr. Trecaso under G.L. 1956 § 27-7-2 prior to amending their complaint to name
Star as a defendant, and on the grounds that judicial estoppel had been incorrectly
applied to their claim.
Having thoroughly reviewed the record, we affirm the trial justice’s decision
with regard to each of plaintiffs’ alleged errors. Accordingly, we decline to address
Star’s cross-appeal challenging the denial of its motions for judgment as a matter of
law.
Mr. Trecaso’s Deposition Testimony
We first consider plaintiffs’ multiple assertions of error with respect to the
trial justice’s decision to admit Mr. Trecaso’s deposition testimony. We review a
trial justice’s decision to admit evidence under an abuse of discretion standard.
Accetta v. Provencal, 962 A.2d 56, 60 (R.I. 2009). A trial justice has wide discretion
to determine the relevance, materiality, and admissibility of offered evidence, and
-8- we will uphold a trial justice’s decision to admit or exclude evidence unless the trial
justice clearly abused her or his discretion and the evidence is “both prejudicial and
irrelevant.” Id. at 60 (quoting State v. Merida, 960 A.2d 228, 234 (R.I. 2008)). Based
on our review of the record, we conclude that the trial justice did not err in admitting
portions of Mr. Trecaso’s videotaped deposition.
First, plaintiffs argue that the trial justice erred in failing to exclude certain
statements in Mr. Trecaso’s deposition in which he stated that Julie drove into his
truck. The plaintiffs objected to the introduction of this evidence prior to trial on the
basis that Mr. Trecaso “did not witness Ms. DeOliveira’s car drive into his Tractor
Trailer” and therefore he was not qualified to testify to whether Julie drove into him.
The trial justice denied plaintiffs’ request in a written order. The trial justice found
that plaintiffs’ attorney was “present or had the opportunity to be and did not raise
objections or move to strike” and that “counsel now moves to strike their own
questions and answer received, after not having done so at the deposition.”
We conclude that the trial justice did not abuse his discretion in admitting
those portions of the deposition testimony. Each of the answers plaintiffs now seek
to have this Court determine were impermissibly admitted were precipitated by a
question from plaintiffs’ counsel. Although our rules do not require that a party
make an objection during a deposition in order to later object to a statement’s
relevancy or materiality, a trial justice has wide discretion to admit evidence it deems
-9- relevant and material. See Super. R. Civ. P. 32(e)(3)(A); Accetta, 962 A.2d at 60.
Here, the trial justice correctly found that plaintiffs elicited the responses which they
sought to have excluded, and, as a result, declined to grant plaintiff’s motion.
Moreover, it is apparent from the recorded deposition that Mr. Trecaso’s statements
were both relevant and material. Specifically, Mr. Trecaso’s conclusion that Julie
drove into him was based on his perception of the series of events both before and
after her collision with his truck and was therefore relevant to the question of whose
conduct caused the accident. See R.I. R. Evid. 401 (defining “relevant evidence”);
R.I. R. Evid. 602 (describing requirement that a witness possess personal knowledge
of the matter on which they are to testify). Accordingly, we conclude that the trial
justice did not abuse his discretion in admitting those statements.
The plaintiffs next argue that the trial justice abused his discretion in failing
to exclude statements in Mr. Trecaso’s deposition that purportedly constituted
improper vouching for his own credibility and an improper attack on Julie’s
credibility. In particular, plaintiffs object to statements during Mr. Trecaso’s
deposition where he stated that plaintiffs’ counsel was “not involved with the truth,”
that “I should have [a lawyer] against you,” and that “[y]ou need to stand up and say
that.” In addressing plaintiffs’ argument in response to their motion to exclude those
statements, the trial justice denied plaintiffs’ request on the ground that plaintiffs’
counsel “acted inappropriately and unprofessionally by accusing the witness of
- 10 - attempting to derail, questioning the meaning of the oath * * *, questioning the
witness’s ‘world view’ and otherwise arguing with [the] witness.” At the hearing
on plaintiffs’ motion for a new trial, the trial justice added that he chose to admit Mr.
Trecaso’s statements so that the “jury [could] get a sense of” the deposition including
the “unnecessarily hostile” nature of plaintiffs’ counsel’s line of questioning.
In our review of the record, we are satisfied that the trial justice did not abuse
his discretion in admitting these statements based on the fact that Mr. Trecaso’s
statements were given in response to plaintiffs’ counsel’s questions, and because the
trial justice has wide discretion in determining the materiality of evidence presented
to the jury. Accetta, 962 A.2d at 60. We are unpersuaded by plaintiffs’ suggestion
that these statements suggested an opinion on Julie’s credibility. Rather, it is plain
from the transcript of the deposition that Mr. Trecaso’s statements were directed at
plaintiffs’ counsel and not Julie, and therefore could not have constituted
impermissible comments about Julie’s credibility. We therefore find no abuse of
discretion in the trial justice’s decision to admit these statements.
The plaintiffs next argue that the trial justice erred in failing to exclude the
entirety of Mr. Trecaso’s deposition because Star never made a showing of Mr.
Trecaso’s unavailability to testify in person. The plaintiffs’ argument is advanced
for the first time before this Court, however, and is therefore waived. Cappuccilli v.
Carcieri, 174 A.3d 722, 733 (R.I. 2017) (“The raise-or-waive rule precludes a
- 11 - litigant from arguing an issue on appeal that has not been articulated at trial.”)
(quoting Thornley v. Community College of Rhode Island, 107 A.3d 296, 302 (R.I.
2014)). In the Superior Court, plaintiffs argued that Mr. Trecaso’s deposition should
be excluded in its entirety because the Superior Court lacked personal jurisdiction
over Mr. Trecaso because he had been dismissed from the case with prejudice. In
advancing that argument, plaintiffs conceded that “Mr. Trecaso is not an ‘out of state
witness’ for purposes of Rule 32 unavailability, but rather, somebody who the Court
has no personal jurisdiction over * * *.” Having made that argument, however,
plaintiffs are barred from raising Rule 32 in this Court as a means to argue that Mr.
Trecaso’s deposition should have been excluded in its entirety. See E.T. Investments,
LLC v. Riley, 262 A.3d 673, 676 (R.I. 2021) (restricting appellant’s ability to
advance a new theory on an issue when that theory was not presented before trial
court).
Finally, plaintiffs contend that the trial justice erred in permitting defendant
to rely on Mr. Trecaso’s deposition and police statement to argue that Julie crossed
into Mr. Trecaso’s lane of travel. Prior to trial, plaintiffs filed a motion in limine
seeking to prevent defendant from using Mr. Trecaso’s deposition to establish that
Julie crossed lanes because Mr. Trecaso did not see Julie drive into his truck. A
justice of the Superior Court denied plaintiffs’ motion on the grounds that plaintiffs
did not cite any rule of evidence or legal authority that barred its admission, and
- 12 - because he concluded that plaintiffs’ argument goes to the weight of the statements
in Mr. Trecaso’s deposition rather than their admissibility. On appeal, plaintiffs add
that defendant also should not have been permitted to rely on Mr. Trecaso’s written
police report statement that Julie drove into his truck.
We perceive no abuse of discretion as to the trial justice’s decision to admit
either the deposition or the police report because at no point during this litigation
have plaintiffs identified any rule of evidence that would block the statements from
being admitted. Rather than substantively challenge its admissibility, plaintiffs have
consistently asserted that defendant should not have been allowed to rely on the
statements and police report because Mr. Trecaso admitted that he did not see Julie
drive into his truck. As the trial justice noted, however, that argument poses a
question for the jury as to the weight that ought to be given to Mr. Trecaso’s
description of events. Accordingly, we conclude that the evidence was properly
admitted, and the trial justice did not abuse his discretion in doing so.
Trooper Hanley
The plaintiffs make several arguments before this Court pertaining to Trooper
Hanley’s testimony. We will address each in turn.
First, plaintiffs allege that Trooper Hanley’s police report should not have
been allowed into evidence because it contained her own narrative as well as Mr.
Trecaso’s written assumption about how the accident occurred. Based on our review
- 13 - of the record, plaintiffs failed to adequately preserve this argument for appeal. At a
pretrial hearing, plaintiffs’ counsel withdrew the objection to the police report.
Puzzlingly, however, when defendant sought to publish the police report to the jury,
plaintiffs’ counsel asserted that plaintiffs had “reserved at pre-trial [their] objections
* * * regarding the police report.” Our review of the record, however, reveals that
plaintiffs had not “reserve[d]” any objection to the police report during pretrial
hearings; rather, plaintiffs affirmatively indicated that the objection was withdrawn.
Our well-settled raise or waive rule prevents us from addressing arguments not
raised before the trial justice in the first instance. See E.T. Investments, LLC, 262
A.3d at 676. Here, plaintiffs’ failure to press the objection at trial on any ground
other than the one already abandoned compels us to conclude that that argument is
waived. Id.
Second, plaintiffs argue that the trial justice abused his discretion in
permitting Trooper Hanley to testify to Julie’s credibility. This argument is also
waived. During Trooper Hanley’s testimony, Star’s counsel asked Trooper Hanley
“what information [she] * * * gather[ed] from the parties that led [her] to indicate
that Mr. Trecaso could not have been entering the on-ramp at Exit 15[.]” The
plaintiffs’ sole objection to that question was that it was “leading.” The plaintiffs
did not assert any additional basis for their objection either at trial or in their motion
for a new trial. Before this Court, however, they argue that that question sought to
- 14 - have Trooper Hanley testify as to Julie’s credibility. The plaintiffs never raised the
argument that defense counsel’s question required Trooper Hanley to opine on
Julie’s credibility before the trial justice, and therefore their argument is waived. See
Cappuccilli, 174 A.3d at 733.
Third, plaintiffs argue that the trial justice erred in admitting Google Earth
aerial photographs of the area of Interstate 95 where the accident occurred in 2010
because Trooper Hanley “[l]acked the [k]nowledge” to authenticate those
photographs. The trial justice addressed plaintiffs’ argument about the photographs
at trial. When Trooper Hanley took the stand, Star’s counsel asked whether aerial
photographs produced by defendant were accurate representations of the section of
Interstate 95 where the accident occurred; she responded that they were. The
plaintiffs’ counsel then objected on the grounds that the foundation had not been laid
to establish Trooper Hanley’s actual knowledge regarding the portion of Interstate
95 South where the accident occurred. Star’s attorney subsequently asked additional
questions to establish her knowledge and thereafter sought to admit the exhibits in
full. At that point, plaintiffs’ counsel objected on the grounds that the photograph
had not been authenticated and requested to conduct a voir dire of Trooper Hanley.
During voir dire, Trooper Hanley confirmed that she had “driven 95 South
numerous times.” She also testified that she viewed the highway from above the
ground while flying into T.F. Green Airport “about twenty times.” She testified
- 15 - upon further questioning, however, that she did not recall the path of her flights into
the airport and she could not recall whether her flight flew directly over “the 95
South area where Exit 15 and Exit 14 are located[.]” The plaintiffs’ counsel did not
ask any further questions, the photographs were admitted in full, and plaintiffs’
counsel did not restate his objection to the introduction of the photographs.
On this record, we cannot conclude that the trial justice abused his discretion
in admitting the aerial photographs. “The burden of proof for authentication * * *
is * * * slight.” O’Connor v. Newport Hospital, 111 A.3d 317, 323 (R.I. 2015)
(brackets omitted) (quoting United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir.
1994)). The trial justice need only be satisfied that “there is enough support in the
record to conclude that it is reasonably probable that the evidence is what its offeror
proclaims it to be.” Id. (brackets omitted) (quoting State v. Oliveira, 774 A.2d 893,
926 (R.I. 2001)). Trooper Hanley testified that she was familiar with the Interstate
95 interchange, that the photographs were “true and accurate representations * * *
of Google Earth as it existed in 2010,” that the interchange’s layout had not changed
from 2010 to 2013, and, during a voir dire by plaintiffs’ counsel, she stated that she
had driven on Interstate 95 many times and had seen Interstate 95 from an airplane
while flying into T.F. Green Airport. Based on this evidence, we conclude that the
trial justice did not abuse his discretion in concluding that Trooper Hanley could
- 16 - authenticate that the aerial photographs were what Star’s attorney claimed them to
be. See id.
Nevertheless, plaintiffs argue that Trooper Hanley was not a sufficient witness
to authenticate computer-generated photographs because she was not a forensic
scientist, citing United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012), and
Odom v. State, 383 So. 3d 322 (Miss. Ct. App. 2023). Those cases are inapposite.
In Espinal-Almeida, the United States Court of Appeals for the First Circuit upheld
a trial judge’s admission of an edited aerial photograph that depicted a defendant’s
travel patterns where that evidence was derived from GPS data and where an expert
was not present to testify to the authenticity of the underlying data upon which the
map was based. Espinal-Almeida, 699 F.3d at 609-13. In Odom, Mississippi’s
intermediate appellate court held that a Google satellite image that had been edited
to reflect the location of a car based on location data pulled from a third-party’s
corporate software was not properly authenticated because no effort had been made
to authenticate the underlying data used to create the edited image and the testifying
law enforcement officer was not qualified to do so. Odom, 383 So. 3d at 330-31.
However, the Odom court nonetheless determined that the error was harmless. Id. at
331.
Both of those cases concern significantly more complex evidence than the
evidence at issue in the instant case and only one of them, Odom, held that the
- 17 - testimony of the particular law enforcement officer who testified in that case could
not authenticate the computer-generated image challenged on appeal. Odom, 383 So.
3d at 331. Moreover, unlike in both Espinal-Almeida and Odom, plaintiffs here
object to the introduction of a bare, unedited photograph of a portion of a highway.
To be sure, the photographs, like those in the other cases, were pulled from the
Internet, but notably, defense counsel represented at trial that the photographs were
“from April 30, 2010,” in response to which plaintiffs’ counsel presented no
objection, and Trooper Hanley testified that they accurately depicted the interstate
as of that date. Our review of the record reveals that Trooper Hanley was qualified
to testify to what the photographs depicted. We therefore discern no abuse of
discretion in the trial justice’s decision to admit the photographs as accurate
representations of Interstate 95 South.
The plaintiffs next argue that Trooper Hanley should not have been allowed
to interpret the Google Earth images once admitted because that required expert
testimony. The plaintiffs first object to the following question posed by defense
counsel: whether, “to [Trooper Hanley’s] knowledge, * * * the configuration of the
interstate, the location of the exits, the on-ramps and the off ramps changed from
2010 to 2013.” The plaintiffs’ argument as to that question is waived, however.
Although plaintiffs objected to the question when it was asked, and stated as grounds
for that objection that Trooper Hanley was not qualified to give an expert opinion
- 18 - on the configuration of the highway, the question was subsequently withdrawn. The
plaintiffs next object to defendants’ subsequent question which asked Trooper
Hanley whether the aerial photographs were “true and accurate representations * * *
of Google Earth as it existed in 2010?” The plaintiffs objected at trial on the basis
that defendants had not established that Trooper Hanley possessed the expert
knowledge necessary to answer questions regarding the configuration of the
highway; on appeal, they argue that Trooper Hanley’s testimony about the
geographic location of the images required specialized knowledge. We observe no
abuse of discretion in the trial justice’s decision to overrule plaintiffs’ objection,
however, because defendant’s question did not seek to elicit expert testimony; rather,
it only sought testimony as to Trooper Hanley’s personal knowledge of the
highway’s layout at the time of the accident.4 Accordingly, we discern no abuse of
discretion in the trial justice’s decision to admit Trooper Hanley’s testimony
regarding the Google Earth images.
The plaintiffs also argue that Trooper Hanley should not have been allowed
to give an opinion on who caused the accident. Specifically, plaintiffs identify errors
in the trial justice’s decision to overrule their objection to three questions asked of
4 We additionally observe that, just two pages earlier in the transcript, defendant asked a nearly identical question regarding whether the photographs accurately depicted the highway at the time of the accident. Trooper Hanley responded that they appeared to, and plaintiffs did not object. - 19 - Trooper Hanley. The first question asked, “Does the accident report state that the
plaintiffs’ vehicle was in the process of changing lanes prior to impact?” On appeal,
plaintiffs contend that this question called for Trooper Hanley’s expert opinion. Our
review of the entire transcript, however, satisfies us that defense counsel was not
calling for Trooper Hanley to offer any “specialized knowledge” about the accident
that would require expert testimony. R.I. R. Evid. 702. Rather, the question only
asked her to read what was contained in her accident report which, at that point in
the trial, had already been admitted as a full exhibit. Therefore, the trial justice did
not err in overruling plaintiffs’ objection.
The second question asked: “Does the 911 call, when the vehicle -- the truck
flipped on the vehicle, does that influence any of the findings in the accident report?”
Both plaintiffs’ counsel and Julie’s counterclaim counsel objected to the question on
different grounds, and the trial justice sustained Julie’s counterclaim counsel’s
objection. Because the trial justice sustained one of the objections to that question,
plaintiffs cannot now appeal the trial justice’s denial of their objection; the trial
justice sustained one of the objections, and there is therefore nothing left for this
Court to review. See State v. Gautier, 950 A.2d 400, 413 (R.I. 2008) (declining to
address issue where appealing party’s objection was sustained at trial).
Finally, plaintiffs argue that the trial justice erroneously overruled their
objection to the following question:
- 20 - “Q: Trooper Hanley, as part of your accident report, did you note in your accident report anywhere that Mr. Trecaso was a contributing factor to this accident?”
The plaintiffs’ counsel and counterclaim counsel objected on the grounds that the
question called for expert opinion. Once again, we disagree. The question calls for
Trooper Hanley to look at her accident report (which was admitted as a full exhibit)
and tell the jury what it contained. Therefore, we conclude that the trial justice did
not abuse his discretion in failing to sustain plaintiffs’ objection to that question.
Opening Remarks and Closing Argument
The plaintiffs argue that the trial justice erred in overruling their objections to
defense counsel’s statements during his opening remarks and closing argument.
When reviewing an allegation of error during opening remarks and closing
argument, this Court recognizes that counsel enjoys “the privilege of engaging in all
fair comment on behalf of his or her client.” Baker v. Women & Infants Hospital of
Rhode Island, 268 A.3d 1165, 1169 (R.I. 2022) (brackets omitted) (quoting Norlin
Music, Inc. v. Keyboard “88” Inc., of Warwick, 425 A.2d 74, 75-76 (R.I. 1981)).
“[T]he proper function of an opening statement is to apprise the jury with reasonable
succinctness what the issues are in the case that is about to be heard and what
evidence the [plaintiff] and the defense expect to produce at trial in support of their
respective positions.” Avarista v. Aloisio, 672 A.2d 887, 892 (R.I. 1996) (quoting
State v. Byrnes, 433 A.2d 658, 664 (R.I. 1981)). Statements made during opening
- 21 - remarks are impermissible when they “attempt[] to appeal solely to the prejudice
and passion in the minds of the jurors, thereby diverting their minds from the case
at issue.” Baker, 268 A.3d at 1169 (quoting Norlin Music, Inc., 425 A.2d at 75-76).
However, this Court will not overturn a verdict unless it appears that the verdict was
influenced by the statement and where there was no curative instruction. Id.
In his opening remarks, defense counsel noted that Julie and Maxine would
testify that Mr. Trecaso entered the highway from the Jefferson Boulevard on-ramp,
but that “all of the facts in the case, including where the trooper found the car, the
location of the car, and all of the other testimony proves it is physically impossible
for the accident to happen in the way that the plaintiffs say it happened. Simply
because Mr. Trecaso was not coming on the on-ramp, the accident happened * * *
North of Exit 15.” The plaintiffs argue on appeal that defense counsel should not
have been permitted to make the statements about the accident’s physical
impossibility because that assertion is “baseless.” In our review of the record,
however, defense counsel’s statement permissibly alluded to the evidence it
expected to—and ultimately did—produce in support of its position that plaintiffs’
version of events was impossible; accordingly, we perceive no error in his having
alluded to that evidence in his opening statement. See Avarista, 672 A.2d at 892.
Likewise, during closing argument defense counsel asserted that “[i]t is
physically impossible for the accident to happen the way [the plaintiffs] described”
- 22 - because “[f]or the accident to happen in the way that they say it happened, Greg
Trecaso has to be coming on the Exit 15 on-ramp. But her car is somehow found
200 feet north of Exit 15.” We have consistently held that parties retain
“considerable latitude in closing argument, as long as the statements pertain only to
the evidence presented and represent reasonable inferences from the record.” State
v. Boillard, 789 A.2d 881, 885 (R.I. 2002). Here, defendant connected its argument
regarding impossibility of plaintiffs’ version of events to the specific evidence
Trooper Hanley provided regarding the location of Julie’s car at the time she came
to the scene. Accordingly, we perceive no error in allowing that statement.
Finally, any possible error in defense counsel’s opening remarks or closing
argument was mitigated by the trial justice’s comprehensive instructions telling
jurors that those statements were not evidence and could not be considered as such.
We assume the jury followed the instructions and, therefore, do not conclude that
the brief and permissible mentions of physical impossibility prejudiced plaintiffs in
any way. See Brunswick Corporation v. Sposato, 120 R.I. 673, 676, 389 A.2d 1251,
1253 (1978).
The plaintiffs further argue that the trial justice erred by overruling their
objection to defense counsel’s statement during closing argument wherein he
asserted that plaintiffs’ counsel and Julie’s counterclaim counsel “attacked” and
“besmirch[ed]” Trooper Hanley on the stand. The plaintiffs argue that those remarks
- 23 - were “intended to goad and fire up the all-female Jury * * *.” The trial justice
overruled plaintiffs’ objection at trial, and we conclude that he was correct to do so.
A statement at closing argument is improper when it is “totally extraneous to the
issues in the case and tend[s] to inflame and arouse the passions of the jury.”
Boillard, 789 A.2d at 885 (quoting State v. Mancini, 108 R.I. 261, 273-74, 274 A.2d
742, 748 (1971)). Here, the evidence submitted to the jury about the cause of the
accident was derived from the statements of five witnesses: Julie, Maxine, Mr.
Trecaso, an anonymous 911-caller, and Trooper Hanley. Trooper Hanley’s
credibility and plaintiffs’ efforts to undermine that credibility during
cross-examination were therefore not “extraneous to the issues in the case” but rather
appropriate subjects of closing argument. Id. (quoting Mancini, 108 R.I. at 273-74,
274 A.2d at 748). Moreover, defense counsel’s remarks accurately described
plaintiffs’ attorney’s pointed cross-examination of Trooper Hanley during which he
suggested that Trooper Hanley had not effectively dispatched her investigative
duties. We therefore conclude that the trial justice did not err in overruling plaintiffs’
objection to these statements.
Jury Instructions
The plaintiffs next argue that the trial justice erred in giving an expert witness
instruction that was misleading because neither party introduced any experts. The
plaintiffs’ attorney raised the same objection before the trial justice, who overruled
- 24 - the objection on the grounds that plaintiffs had introduced medical record evidence
that warranted an expert witness instruction. “[T]his Court examines jury
instructions ‘in their entirety to ascertain the manner in which a jury of ordinarily
intelligent lay people would have understood them.’” Botelho v. Caster’s Inc., 970
A.2d 541, 545 (R.I. 2009) (quoting Parrella v. Bowling, 796 A.2d 1091, 1101 (R.I.
2002)). “An erroneous charge warrants reversal only if it can be shown that the jury
could have been misled to the resultant prejudice of the complaining party.”
Mandros v. Prescod, 948 A.2d 304, 310 (R.I. 2008) (quoting State v. Sivo, 925 A.2d
901, 913 (R.I. 2007)). After conducting our required review of the instructions in
the instant case, we perceive no error.
The trial justice’s instructions included only one reference to expert
testimony. There, the trial justice informed the jury that “[o]rdinarily, the law does
not permit a witness to testify about his or her opinions or conclusions,” but that an
expert witness is a person who has developed expertise
“and, as a result, is permitted to give his or her opinion about matters in which they are experts. * * * For any expert testimony to be admitted in this case, you will be required to assess the credibility of their testimony and to determine how much weight, if any, you give to it.”
The plaintiffs argue that the trial justice’s instructions led the jury to believe
that Trooper Hanley was an expert and misled them to believe that they, rather than
the trial justice, were to determine whether Trooper Hanley’s testimony was
- 25 - admissible. The jury instructions do not reference Trooper Hanley directly,
however; nor do they state that any particular testimony offered by either party
should be viewed by the jury as expert testimony. Accordingly, we cannot conclude
that a reasonably intelligent juror would understand the trial justice’s general
reference to expert testimony to have referred directly to Trooper Hanley, nor do we
think it caused prejudice to plaintiffs. See Botelho, 970 A.2d at 545. Moreover, even
if the instructions led a juror to believe that Trooper Hanley had provided expert
testimony, the instructions further directed the jurors that they were “required to
assess [her] credibility * * * and to determine how much weight, if any, [to] give to
it.” We discern no error in the trial justice’s instruction, which accurately informed
the jurors of their charge to independently assess all the evidence before them.
Verdict Sheet
The plaintiffs also object to language contained in the verdict sheet. The
plaintiffs object to the first question on the verdict sheet which asked the jurors: “Do
you find that Julie DeOliveira proved, by a fair preponderance of the evidence, that
the Star Insurance Company (Mr. Trecasso [sic]) was negligent in causing her
injuries?” The plaintiffs argue that the trial justice erred when he refused to insert
the words “had any negligence” in place of “was negligent” in order to signal to the
jury that they need not find defendant one hundred percent liable in order to find in
plaintiffs’ favor. The trial justice overruled plaintiffs’ objection at trial upon
- 26 - concluding that “the question makes no inference one way or another as to whether
or not they have to prove 100 percent negligence or any negligence. But the
instructions do. * * * I also note that Question No. 3 and Question No. 6 require a
division of negligence according to percentages. So something smaller than 100
percent would be appropriate.” We agree.
Reviewing the verdict sheet in its entirety, we conclude that there was no
error. See Mangiarelli v. Town of Johnston, 289 A.3d 560, 566-67 (R.I. 2023). The
verdict form required the jurors to go through three steps. First, it informed the
jurors that if they found that Star was negligent, they should proceed to the second
question, which asked if defendant was also the proximate cause of Julie’s injuries.5
If the jury answered that question in the affirmative, the form instructed the jury to
proceed to question three, which asked the jury to proportion the degree of
negligence attributable to each driver. Viewed in its entirety, the verdict form
addressed plaintiffs’ concerns that Star need not be found one hundred percent liable
in order for plaintiffs to recover. Indeed, even if the members of the jury believed
that Star was negligent and believed that Mr. Trecaso was the proximate cause of
plaintiffs’ injuries, they still were provided the opportunity to apportion fault
however they saw fit, including finding that defendant was less than one hundred
percent liable. Therefore, there is no reason to assume that the omission of “had any
5 Questions five through eight posed the same questions as to Maxine. - 27 - negligence” from question one misled the jury into believing that defendant had to
be one hundred percent negligent in order for plaintiffs to receive any award of
damages. Accordingly, we conclude that an ordinarily intelligent juror would not
be misled by the verdict sheet’s contents, and we affirm the decision of the trial
justice declining to adopt plaintiffs’ preferred wording. See Mangiarelli, 289 A.3d
at 566-67.
Empty Chair Doctrine
The plaintiffs next argue that the trial justice erroneously overruled their
objection to a statement made by defense counsel in closing argument and further
erred by failing to give a cautionary instruction in light of that objection. In his
closing argument, defense counsel stated that plaintiffs “could have gotten any of
their experts to come in and say that Greg Trecaso was negligent. They didn’t. They
had the burden of proof. They called no experts.” The plaintiffs objected at trial;
that objection was overruled. We perceive no error with the trial justice’s decision
to overrule plaintiffs’ objection.
As an initial matter, plaintiffs’ argument that the trial justice erred in failing
to provide a cautionary instruction to the jury in light of defense counsel’s statements
must fail because they did not request a cautionary instruction from the trial justice
before the jury retired. See Boillard, 789 A.2d at 883 (“We have held that ordinarily
a defendant must request a cautionary jury instruction or a mistrial in order to
- 28 - preserve for review an objection raised during closing arguments.”); see Super. R.
Civ. P. 51(b).
The plaintiffs did timely object to the allegedly impermissible statement
during closing; therefore, we will address the trial justice’s decision to overrule that
objection. The empty chair doctrine permits a factfinder to draw an adverse
inference from “a litigant’s unexplained failure to produce an available witness who
would be expected to give material testimony [o]n the litigant’s behalf.” Retirement
Board of Employees’ Retirement System of State v. DiPrete, 845 A.2d 270, 294 (R.I.
2004) (quoting Belanger v. Cross, 488 A.2d 410, 412-13 (R.I. 1985)). Before such
an inference may be drawn, however, “it must be demonstrated that the missing
witness was available to the person who would be expected to call the witness.” Id.
In deciding plaintiffs’ motion for a new trial, the trial justice concluded that the
empty chair doctrine was not implicated by defense counsel’s closing argument
because “it was not a violation for the defendant to talk about the burden of proof
being on the plaintiff, who has the burden of proof * * *.” We agree, and further
conclude that the empty chair doctrine was not implicated by defendant’s statement
that plaintiffs “had the burden of proof” but “called no experts” because the empty
chair doctrine permits such an inference only where the parties establish that a party
had an available witness that they neglected to call. See Retirement Board of
Employees’ Retirement System of State, 845 A.2d at 294. Here, however, there is no
- 29 - evidence that plaintiffs possessed a witness that they failed to call, or that defendant
sought to gain a beneficial adverse inference from the plaintiffs’ failure to call that
witness. Id. Thus, we conclude, that the empty chair doctrine has not been violated.
Motion for A New Trial
We review a trial justice’s decision on a motion for a new trial with deference.
Dextraze v. Bernard, 253 A.3d 411, 416 (R.I. 2021). Accordingly, we will “affirm
a trial justice’s decision on a motion for a new trial as long as the trial justice
conducts the appropriate analysis, does not overlook or misconceive material
evidence, and is not otherwise clearly wrong.” Kazarian v. New London County
Mutual Insurance Company, 331 A.3d 984, 991 (R.I. 2025) (quoting Zarembka v.
Whelan, 176 A.3d 485, 487-88 (R.I. 2018)).
The plaintiffs challenge the trial justice’s decision to deny their motion for a
new trial because, they argue, the jury’s conclusion “defies reason, logic and
common sense” and is against the fair preponderance of the evidence. The plaintiffs
point to the introduction of the 911 call in which the caller described seeing Mr.
Trecaso’s truck “smash into the White Car” to argue that Mr. Trecaso’s contrary
testimony should not have been believed and, therefore, the jury should have reached
a different verdict.
Our review of the trial justice’s decision reveals that he accurately stated the
standard applicable to a motion for a new trial, thoroughly evaluated the evidence
- 30 - presented at trial, articulated his credibility determinations, and ultimately conducted
the proper analysis. He noted that neither Julie nor Maxine were credible given
Julie’s inconsistent statements and elusive answers to questions, and Julie and
Maxine’s denial of their shared history of interpersonal tension. The trial justice
acknowledged that Mr. Trecaso did not testify that he witnessed Julie leave her lane
and make contact with his truck, but rather that he testified that he saw Julie with
her blinker on as if she was preparing to take an exit. The trial justice further
acknowledged the 911 call played for the jury, but found that it was of “limited”
value because it was from an unidentified caller and contained the statement, “I don’t
know really what happened” casting doubt on the reliability of the speaker. After
conducting his analysis, the trial justice determined “the only possible proof of
negligence, if any, is this 911 caller,” which did “not add up to reliable proof by even
a mere preponderance of the evidence.” He consequently denied the plaintiffs’
motion for a new trial. Because it is clear to us that the trial justice applied the
appropriate standard, conducted the correct analysis, and did not otherwise clearly
err, we affirm his decision denying the plaintiffs’ motion for a new trial.
Conclusion
Based on our assessment of the arguments presented in the plaintiffs’ appeal,
we affirm the trial justice’s decision on the plaintiffs’ motion for a new trial and
reject all of the plaintiffs’ specific claims of error. Because we so conclude, we
- 31 - decline to address the defendant’s cross-appeal. Therefore, we affirm the judgment
in favor of the defendant and remand the papers to the Superior Court.
Justice Goldberg participated in the decision but retired prior to its
publication.
- 32 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case Julie DeOliveira et al. v. Greg Trecaso et al.
No. 2024-66-Appeal. Case Number No. 2024-72-Appeal. (PC 12-1012)
Date Opinion Filed June 3, 2026
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear
For Plaintiffs:
Charles N. Garabedian, Esq. Attorney(s) on Appeal For Defendant:
Todd J. Romano, Esq.
SU-CMS-02A (revised November 2022)