NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-100
SON TREME & another 1
vs.
WAL-MART TRANSPORTATION, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Son Treme and Heather Treme, 2 individually
and on behalf of her minor child with Son, brought claims in the
Superior Court against the defendant, Wal-Mart Transportation,
LLC (Wal-Mart), for negligence and loss of consortium.
Following a trial, a jury found Wal-Mart negligent and awarded
$1,424,102 to Son and $350,000 to the child for loss of
consortium. The plaintiffs filed a motion for additur or a new
trial on the issue of damages, arguing that the improper
exclusion of a medical report led to an abnormally low verdict.
1 Heather Treme, individually and on behalf of her minor child.
2Because the parties share a last name, we refer to them by their first names. The judge denied that motion by order dated July 8, 2024, and
the plaintiffs appealed. We affirm.
Background. We summarize facts that the jury could have
found. On November 12, 2014, Son was driving on the highway
when a tractor-trailer operated by an employee of Wal-Mart and
owned by Wal-Mart struck Son's vehicle from behind. The
following day, Son sought medical treatment and was diagnosed
with a concussion, cervical strain, and a wrist sprain. He was
prescribed diazepam and Percocet. When Son filled those
prescriptions at a CVS Pharmacy, he was accidentally given
Prozac. Son took the Prozac as directed. On November 16, Son
was standing in the kitchen when he became rigid and fell
forward, striking his head on the floor. Emergency medical
providers responding to the scene believed that Son experienced
a seizure. In December 2016, Son and his wife at the time,
Heather, brought this action against (as relevant here) Wal-Mart
and CVS Pharmacy, Inc. (CVS). 3 The complaint alleged negligence
and loss of consortium, on behalf of Son and the plaintiffs'
daughter, against Wal-Mart and CVS. 4
3 The plaintiffs' claims against the driver of the vehicle were dismissed by stipulation of the parties on February 1, 2023.
4 The parties stipulated to a dismissal of Heather's claims for loss of consortium in her individual capacity on February 1, 2023. The complaint additionally alleged breaches of warranty
2 Prior to trial, the plaintiffs retained Dr. Gregory
O'Shanick, a neurology and neuropsychiatry expert, to testify
about the nature, extent, and medical cause of Son's injuries.
Dr. O'Shanick ordered advanced neurological imaging for Son, to
occur at a SimonMed radiological facility in Nevada in February
2023. Dr. Travis Snyder, a neuroradiologist employed by
SimonMed, prepared a report based on the results of the imaging
(SimonMed report).
The plaintiffs sought to introduce the SimonMed report at
trial pursuant to G. L. c. 233, § 79G. In October 2023, CVS
filed a motion in limine to preclude such admission (motion to
preclude). The judge reserved ruling on the motion until trial.
On November 28, 2023, after the jury heard testimony of Dr.
O'Shanick interpreting the SimonMed report, CVS renewed its
motion to preclude the SimonMed report. The judge allowed CVS's
motion on two grounds: first, because there was no evidence
that Dr. Snyder had "treated or examined" Son, see Ortiz v.
Stein, 31 Mass. App. Ct. 643, 645 (1991); and second, because
the judge interpreted § 79G to require nonhospital records be
certified by the attending physician, whereas the SimonMed
report was certified only by an authorized agent of SimonMed.
and a violation of G. L. c. 93A against CVS, but these claims did not reach the jury.
3 On December 12, 2023, the jury returned verdicts finding
that Wal-Mart and CVS were liable to Son for negligence and
assessing $1,424,102 for Son's damages and $350,000 for the
minor child's loss of consortium. 5 On February 16, 2024, after
accounting for reductions pursuant to G. L. c. 231B, § 4 (a),
for amounts previously paid by CVS as a joint tortfeasor,
judgment for Son and Heather on behalf of the minor child
entered, against Wal-Mart, for zero dollars.
On February 26, 2024, the plaintiffs served a motion for
additur, or in the alternative for a new trial on the issue of
damages, arguing that the exclusion of the SimonMed report was
prejudicial error resulting in an "abnormally low" jury award.
On July 8, 2024, the judge denied the plaintiffs' motion on the
same grounds he previously cited for allowing CVS's motion to
preclude. Additionally, the judge found that even if the
exclusion of the SimonMed report was in error, no prejudice
resulted to the plaintiffs.
Discussion. We review a trial judge's evidentiary
decisions under an abuse of discretion standard. N.E. Physical
Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363
(2013). Abuse of discretion is also the standard that applies
to our review of a trial judge's decision on a motion for
5 On February 1, 2024, the plaintiffs entered into a settlement with CVS, and CVS is not a party to this appeal.
4 additur or for a new trial on damages. Tocci v. Tocci, 490
Mass. 1, 14 (2022). For a jury's award to warrant disturbance,
"[t]he inadequacy of the award of damages must descend to the
level of unreasonableness, such that a miscarriage of justice
[would] result if the verdict were to stand" (quotations
citations omitted). Id. We recognize that "[t]he field of
discretion of the trial judge in these matters is very broad,
[and] only in exceedingly rare cases will we conclude that [an
abuse of discretion occurred]" (quotations and citations
omitted). Id. at 14-15.
The plaintiffs argue that the judge committed prejudicial
error by precluding the admission of the SimonMed report under
G. L. c. 233, § 79G. We need not address the admissibility of
the SimonMed report under § 79G because, even assuming error, we
conclude the plaintiffs have failed to demonstrate that the
exclusion of the report "injuriously affected the[ir]
substantial rights." G. L. c. 231, §§ 119, 132. The plaintiffs
have not shown that the admission of the report "could have made
a material difference" in the jury's award of damages. DeJesus
v. Yogel, 404 Mass. 44, 48 (1989).
We are unpersuaded by the plaintiffs' arguments that the
exclusion of the SimonMed report prevented Son from rebutting
the numerous other radiology reports admitted in evidence and
5 prejudiced his cross-examination of CVS and Wal-Mart's expert
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-100
SON TREME & another 1
vs.
WAL-MART TRANSPORTATION, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Son Treme and Heather Treme, 2 individually
and on behalf of her minor child with Son, brought claims in the
Superior Court against the defendant, Wal-Mart Transportation,
LLC (Wal-Mart), for negligence and loss of consortium.
Following a trial, a jury found Wal-Mart negligent and awarded
$1,424,102 to Son and $350,000 to the child for loss of
consortium. The plaintiffs filed a motion for additur or a new
trial on the issue of damages, arguing that the improper
exclusion of a medical report led to an abnormally low verdict.
1 Heather Treme, individually and on behalf of her minor child.
2Because the parties share a last name, we refer to them by their first names. The judge denied that motion by order dated July 8, 2024, and
the plaintiffs appealed. We affirm.
Background. We summarize facts that the jury could have
found. On November 12, 2014, Son was driving on the highway
when a tractor-trailer operated by an employee of Wal-Mart and
owned by Wal-Mart struck Son's vehicle from behind. The
following day, Son sought medical treatment and was diagnosed
with a concussion, cervical strain, and a wrist sprain. He was
prescribed diazepam and Percocet. When Son filled those
prescriptions at a CVS Pharmacy, he was accidentally given
Prozac. Son took the Prozac as directed. On November 16, Son
was standing in the kitchen when he became rigid and fell
forward, striking his head on the floor. Emergency medical
providers responding to the scene believed that Son experienced
a seizure. In December 2016, Son and his wife at the time,
Heather, brought this action against (as relevant here) Wal-Mart
and CVS Pharmacy, Inc. (CVS). 3 The complaint alleged negligence
and loss of consortium, on behalf of Son and the plaintiffs'
daughter, against Wal-Mart and CVS. 4
3 The plaintiffs' claims against the driver of the vehicle were dismissed by stipulation of the parties on February 1, 2023.
4 The parties stipulated to a dismissal of Heather's claims for loss of consortium in her individual capacity on February 1, 2023. The complaint additionally alleged breaches of warranty
2 Prior to trial, the plaintiffs retained Dr. Gregory
O'Shanick, a neurology and neuropsychiatry expert, to testify
about the nature, extent, and medical cause of Son's injuries.
Dr. O'Shanick ordered advanced neurological imaging for Son, to
occur at a SimonMed radiological facility in Nevada in February
2023. Dr. Travis Snyder, a neuroradiologist employed by
SimonMed, prepared a report based on the results of the imaging
(SimonMed report).
The plaintiffs sought to introduce the SimonMed report at
trial pursuant to G. L. c. 233, § 79G. In October 2023, CVS
filed a motion in limine to preclude such admission (motion to
preclude). The judge reserved ruling on the motion until trial.
On November 28, 2023, after the jury heard testimony of Dr.
O'Shanick interpreting the SimonMed report, CVS renewed its
motion to preclude the SimonMed report. The judge allowed CVS's
motion on two grounds: first, because there was no evidence
that Dr. Snyder had "treated or examined" Son, see Ortiz v.
Stein, 31 Mass. App. Ct. 643, 645 (1991); and second, because
the judge interpreted § 79G to require nonhospital records be
certified by the attending physician, whereas the SimonMed
report was certified only by an authorized agent of SimonMed.
and a violation of G. L. c. 93A against CVS, but these claims did not reach the jury.
3 On December 12, 2023, the jury returned verdicts finding
that Wal-Mart and CVS were liable to Son for negligence and
assessing $1,424,102 for Son's damages and $350,000 for the
minor child's loss of consortium. 5 On February 16, 2024, after
accounting for reductions pursuant to G. L. c. 231B, § 4 (a),
for amounts previously paid by CVS as a joint tortfeasor,
judgment for Son and Heather on behalf of the minor child
entered, against Wal-Mart, for zero dollars.
On February 26, 2024, the plaintiffs served a motion for
additur, or in the alternative for a new trial on the issue of
damages, arguing that the exclusion of the SimonMed report was
prejudicial error resulting in an "abnormally low" jury award.
On July 8, 2024, the judge denied the plaintiffs' motion on the
same grounds he previously cited for allowing CVS's motion to
preclude. Additionally, the judge found that even if the
exclusion of the SimonMed report was in error, no prejudice
resulted to the plaintiffs.
Discussion. We review a trial judge's evidentiary
decisions under an abuse of discretion standard. N.E. Physical
Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363
(2013). Abuse of discretion is also the standard that applies
to our review of a trial judge's decision on a motion for
5 On February 1, 2024, the plaintiffs entered into a settlement with CVS, and CVS is not a party to this appeal.
4 additur or for a new trial on damages. Tocci v. Tocci, 490
Mass. 1, 14 (2022). For a jury's award to warrant disturbance,
"[t]he inadequacy of the award of damages must descend to the
level of unreasonableness, such that a miscarriage of justice
[would] result if the verdict were to stand" (quotations
citations omitted). Id. We recognize that "[t]he field of
discretion of the trial judge in these matters is very broad,
[and] only in exceedingly rare cases will we conclude that [an
abuse of discretion occurred]" (quotations and citations
omitted). Id. at 14-15.
The plaintiffs argue that the judge committed prejudicial
error by precluding the admission of the SimonMed report under
G. L. c. 233, § 79G. We need not address the admissibility of
the SimonMed report under § 79G because, even assuming error, we
conclude the plaintiffs have failed to demonstrate that the
exclusion of the report "injuriously affected the[ir]
substantial rights." G. L. c. 231, §§ 119, 132. The plaintiffs
have not shown that the admission of the report "could have made
a material difference" in the jury's award of damages. DeJesus
v. Yogel, 404 Mass. 44, 48 (1989).
We are unpersuaded by the plaintiffs' arguments that the
exclusion of the SimonMed report prevented Son from rebutting
the numerous other radiology reports admitted in evidence and
5 prejudiced his cross-examination of CVS and Wal-Mart's expert
witnesses.
Although the SimonMed report itself was not admitted in
evidence, the jury heard the relevant substance of the report
through the prerecorded expert testimony of Dr. O'Shanick.
During the plaintiffs' examination of Dr. O'Shanick, the jury
were able to view various magnetic resonance images (MRIs) and
slides from the SimonMed report while Dr. O'Shanick interpreted
those images. Dr. O'Shanick opined that the asymmetrical
scarring and hyperintensities in Son's left frontal lobe visible
in the images were consistent with Son's injuries "to the left
side that he had with the TMJ originally[6] as well as the left
impact to his head when he hit the floor." Dr. O'Shanick
further opined that "to a reasonable degree of medical
certainty," the "lesions were caused by the concussions of
November 12th and November 16th." The jury could reasonably
conclude from Dr. O'Shanick's testimony that the SimonMed report
was objective medical evidence corroborating the plaintiffs'
theory of the case. To the extent that the SimonMed report was
competent to rebut the other radiological reports reflecting
6 The jury could infer that this was a reference to the whiplash injury sustained from the November 12, 2014 car accident.
6 "normal" and "unremarkable" findings, so too was the testimony
of Dr. O'Shanick.
The plaintiffs give three examples of expert witnesses for
CVS and Wal-Mart of whom their cross-examination was allegedly
prejudiced by the exclusion of the SimonMed report. However,
each of these experts -- Dr. Sumit Narayan Niogi, Dr. Michael
Burns, and Dr. Joseph D'Alton -- testified after the jury heard
the prerecorded testimony of Dr. O'Shanick. 7 That testimony was
therefore part of the record, and the plaintiffs were free to
make use of it in their cross-examinations. See Commonwealth v.
Burgess, 450 Mass. 422, 435-436 (2008) (expert may testify, in
response to hypothetical question or otherwise, to opinion that
is based on evidence already admitted); Mass. G. Evid.
§ 611(b)(1) (2026) ("A witness is subject to cross-examination
on any matter relevant to any issue in the case, including . . .
matters not elicited during direct examination"). The
plaintiffs have failed to identify any instance where their
cross-examination strategy depended on the availability of the
7 Dr. O'Shanick's testimony was recorded on October 16, 2023, and played for the jury on November 16 and 20, 2023. Dr. Niogi testified on November 22, 2023, and stated that he had reviewed the testimony of Dr. O'Shanick. Dr. Burns and Dr. D'Alton testified on November 30, 2023.
7 SimonMed report itself, as opposed to the recorded testimony of
Dr. O'Shanick. 8
The plaintiffs further argue that Dr. O'Shanick's testimony
did not "erase the harm" from excluding the SimonMed report
because jury deliberations began seventeen days after Dr.
O'Shanick's testimony was played and the jury sent a note to the
judge asking, "[d]o we have access to the reports submitted by
expert witnesses?" This argument lacks merit. The jury's
question did not express a specific interest in the SimonMed
report. Furthermore, we share the judge's skepticism that a
jury of laypersons could derive value from independently
reviewing the highly technical SimonMed report without the
interpretive aid of a medical expert. If, as the plaintiffs
suggest, the passage of seventeen days had led the jury to
desire a refresher on the substance of Dr. O'Shanick's
testimony, then the jury could have asked the judge to permit
them to review that testimony and the judge would have had broad
discretion to do so. See Commonwealth v. Richenburg, 401 Mass.
663, 675 (1988). Here, the jury made no such request.
8 Additionally, our evaluation of the plaintiffs' argument is inhibited by the plaintiffs' failure to supply us with the transcripts of the cross-examinations at issue. Mass. R. A. P. 18 (a), (b) (4), as appearing in 481 Mass. 1637 (2019). See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995) (appellant has obligation to include parts of trial transcript which are essential for review of issues raised on appeal).
8 Conclusion. For the foregoing reasons, we conclude that
even if there was error in allowing the motion to preclude the
SimonMed report, the plaintiffs have not shown the requisite
prejudice to warrant disturbing the jury's award of damages.
Accordingly, the judge did not abuse his discretion in denying
the plaintiffs' motion for additur or a new trial on damages.
Judgment affirmed.
Order dated July 8, 2024, affirmed.
By the Court (Walsh, Toone & Tan, JJ. 9),
Clerk
Entered: June 3, 2026.
9 The panelists are listed in order of seniority.