Rivera v. Tondreau

2006 Mass. App. Div. 21
CourtMassachusetts District Court, Appellate Division
DecidedFebruary 9, 2006
StatusPublished

This text of 2006 Mass. App. Div. 21 (Rivera v. Tondreau) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rivera v. Tondreau, 2006 Mass. App. Div. 21 (Mass. Ct. App. 2006).

Opinion

Leary, J.

After a bench trial in this motor vehicle tort action, the defendant/ appellants, Reuben Tondreau (Tondreau), and Veras, Inc. (Veras), raise two issues on appeal: (1) “[wjhether the Trial Court abused its discretion when it admitted medical records into evidence that were never produced, certified or subpoenaed”; and (2) “[wjhether the Trial Court improperly calculated interest and entered erroneous judgment.”

William Rivera (Rivera) was involved in a motor vehicle accident on November 11,1994, when the vehicle he was operating collided with a taxicab operated by the defendant Tondreau. Tondreau’s taxi was owned by the defendant Veras, Inc. (Veras). Another taxicab, operated by the defendant Jean Accino (Accino), was also involved in the accident. Accino’s taxicab was owned by the defendant M and An Cabs, Inc. (M and An Cabs). Rivera filed a complaint against five defendants on March 20, 1995, alleging that Tondreau and Accino caused the accident by engaging in a race with their taxis. Rivera also sought damages from Veras and M and An, as well as Edward Tutujian, the owner of both corporate defendants, under a “piercing the corporate veil” theory of liability.

On August 18,1997, Rivera filed a motion to amend the complaint to add his mother, Maria Carrasquillo, as plaintiff because she had become his guardian. On September 25,1997, the plaintiffs filed a second motion to amend the complaint, this time adding James Miller (Miller), as a plaintiff. Miller was a passenger in the taxi operated by Tondreau at the time of the collision. This second motion was unopposed and was allowed on September 30,1997. Thereafter, plaintiffs’ counsel failed to attend a status conference and on April 9, 1998, the case was dismissed for lack of prosecution.

In March, 1999, Miller, acting alone through new counsel, filed a motion to vacate the judgment of dismissal on grounds that previous counsel inadvertently misconstrued the scheduling order to relate only to the Rivera claims. This motion was denied. Miller sought reconsideration of the motion to vacate the dismissal and on June 21, 1999, the motion was allowed by a different judge. Although Miller’s motion to reconsider was allowed, the court’s order [22]*22stated that “any pre-judgment interest warranted here is tolled from April 7, 1998 to this date.”2

The case was remanded to the Boston Municipal Court on May 16, 2000. On May 6, 2002, the case was scheduled for trial, but Miller did not appear and the case was dismissed. On August 12,2002, Miller filed a motion for relief from judgment which was denied on August 29, 2002. On March 11, 2003, Miller filed a motion to “clarify, correct or modify” the court’s order denying relief from judgment. This motion was allowed and a trial date was scheduled for July 28,2003. On Friday, July 25, 2003, the defendants received copies of medical records from Miller relating to services performed in 1995 that he had not previously produced (“1995 medical records”). Trial was delayed briefly and held on Thursday, July 31, 2003.

The defendants filed a motion in limine on the day of trial requesting the court to prohibit Miller from introducing thel995 medical records into evidence because they were not provided pursuant to discovery requests made pursuant to Mass. R. Civ. R, Rule 34, nor the notice requirements found in G.L.c. 233, §79G. The trial judge offered to continue the trial for a brief period in order to give the defendants additional time to review the records, but they declined. The motion was taken under advisement and the trial was held on July 31,2003. On August 22, 2003, the court denied the defendants’ motion to exclude the 1995 medical records.

On August 28, 2003, the court issued findings of fact and rulings of law. The court found in favor of Miller against the defendants Tondreau and Veras and awarded damages in the amount of $15,000. The court reduced the judgment by $2,000 in recognition of PIP benefits received by the plaintiff, reducing the award to $13,000. The court also found that Miller had not met his burden of proof with respect to defendants Accino and M and An Cabs, Inc. and judgment entered in their favor.

On November 10, 2003, the court allowed a motion of Tondreau and Veras for separate and final judgment. On November 11, 2005, the clerk computed interest and costs and judgment entered in the amount of $26,869.10. The prejudgment interest was calculated pursuant to G.L.c. 231, §6B, as of March 20,1995, the date Rivera first filed the complaint in Superior Court, and this amounted to $13,501.60 of the total judgment. Tondreau and Veras thereafter filed a notice of appeal seeking review of a number of issues, although their appellate brief and argument are limited to the two following issues: (1) whether the trial court abused her discretion in admitting the July 25, 2003 medical records into evidence, and (2) whether the interest was improperly calculated.3

Admission of the Medical Records into Evidence

The defendants first argue that the 1995 medical records should not have been admitted into evidence because they were not produced in response to the defendants’ discovery requests. Mass. R. Civ. R, Rule 34, governs the production of doc[23]*23umentary evidence and states that one party may serve another with a request to produce documents “which are in the possession, custody or control of the party upon whom the request is served.” Such a request was made by the defendants to Miller in January, 1998, when they asked for, among other documents, copies of medical records relating to injuries caused by the accident. In response, Miller produced copies of medical records relating to treatment received on November 11 and 15,1994 and December 13, 1994. The defendants argue that when Miller produced the 1995 medical records, he violated Rule 34 by not serving them earlier. The documents produced by Miller in 1998 include insurance benefits notices from Miller’s health insurer relating to medical services performed on the defendant from the date of the accident throughout 1995. Although most of these notices from 1995 reflect office visits, three notices reference a date of June 9, 1995, and indicate that outpatient surgery was performed on that day. These notices contain descriptive terms such as “outpatient surg,” “anesthes,” and a reference to a Dr. Koche and put the defendants on notice that the plaintiff may have received some additional treatment beyond his hospital visits in November and December, 1994. It does not appear from the record that the defendants sought to discover more information about the services referenced in these notices. There is no indication that the defendants deposed Miller or his physicians, and although there is discussion throughout the trial transcript about interrogatories answered by Miller, there is no evidence that these interrogatories asked Miller to describe his treatment or that he improperly answered an interrogatory by failing to disclose treatments he received after December, 1994. In addition, if the defendants believed that Miller was in possession of documents relating to treatment he received in 1995, they could have sought a court order pursuant to Mass. R. Civ. P, Rule 37, compelling production of them. See Mass. R. Civ. R, Rule 34(b).

The defendants also argue that Miller was required to seasonably produce the 1995 Medical Records as a supplement to their document requests.

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Bluebook (online)
2006 Mass. App. Div. 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-tondreau-massdistctapp-2006.