Ross v. Dietrich

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22-P-1227 Appeals Court

DAVID M. ROSS, personal representative,1 & another2 vs.
GRETCHEN W. DIETRICH.

No. 22-P-1227.

Middlesex. January 4, 2024. – July 19, 2024.

Present: Rubin, Ditkoff, & Grant, JJ.

Medical Malpractice. Negligence, Medical malpractice. Jury and
Jurors. Practice, Civil, Examination of jurors.

Civil action commenced in the Superior Court Department on
April 5, 2018.

The case was tried before John P. Pappas, J.

Chester L. Tennyson, Jr., for the plaintiffs.
Tory A. Weigand for the defendant.

DITKOFF, J. The plaintiffs, David M. Ross and William J.

Ross, personal representatives of the estate of Margaret E. Ross

(decedent), appeal from a judgment in favor of Dr. Gretchen W.

1 Of the estate of Margaret E. Ross.

2 William J. Ross, personal representative of the estate of
Margaret E. Ross.
2

Dietrich after a Superior Court jury found her not negligent in

her medical treatment of the decedent. The sole issue on appeal

is whether the trial judge abused his discretion in setting

limitations on attorney-conducted voir dire of the prospective

jurors. Concluding that the trial judge acted within his

discretion in replacing the plaintiffs' proposed jury voir dire

questions with alternative questions while allowing reasonable

follow-up, we affirm.

1. Background. The plaintiffs "ha[ve] not provided us

with a transcript of the evidence presented at trial, which

limits our ability to review [their] claims." Paiva v. Kaplan,

99 Mass. App. Ct. 645, 646 n.2 (2021). The parties have

provided us with transcripts only of the jury empanelment and

the jury instructions. So far as we can discern, the decedent

was seen by a nurse practitioner at Somerville Family Practice

on March 31, 2015, after experiencing a "whitish plaque" on her

tongue. The nurse practitioner treated her for an external

yeast infection, and did not test her for diabetes.3

On April 6, 2015, the decedent called Somerville Family

Practice complaining of nausea and vomiting. The doctor, who

was employed by Mount Auburn Hospital but treated patients of

Somerville Family Practice, talked to her over the telephone and

3 The plaintiffs dismissed their claims against the nurse
practitioner and Somerville Family Practice prior to trial.
3

then prescribed an antiemetic. Three days later, the decedent

died from diabetic ketoacidosis.

The plaintiffs filed an action on behalf of the decedent's

estate, alleging that the doctor was negligent. So far as we

can tell, the plaintiffs' theory of liability was that the

doctor should have directed the decedent to be seen immediately

in person, and that this would have resulted in the discovery of

the decedent's undiagnosed diabetes in time to save her life.

The defense theory was that the doctor's actions were

appropriate in light of the limited information available to

her.

Prior to trial, the plaintiffs' attorney requested

attorney-conducted voir dire and submitted the following twelve

questions:

"1. Do you have any feelings against medical malpractice
lawsuits?

"2. Are you, a member of your family or a close friend a
health care professional?

"3. Knowing that this is a medical malpractice case, would
you tend to favor the doctor even a little bit, at the
outset before hearing any evidence?

"4. Do you believe that a patient or patient's family
should be allowed to sue a doctor for money damages if the
patient has been injured and died as a result of the
negligence of the doctor?

"5. If a doctor's treatment was negligent, meaning below
the professional standards required of her, but she did not
intend to harm the patient, would you have any difficulty
4

in holding the doctor responsible for all of the harm
caused?

"6. There are going to be experts on both sides of this
case. They will not agree on much. Will you be able to
listen to the evidence, the judge's instructions and make
an assessment of which expert to believe or will you say if
there is no consensus between the experts I simply will not
find in favor of the patient's family?

"7. You are not allowed to let sympathy affect your
decision. Can you assure us that you will not let your
sympathy for the family of the person who died affect your
decision in this case? That you will base your decision
only on the evidence and the law even [if] you feel sorry
for the patient's family?

"8. Can you also assure us that you will not let any
sympathy for the doctor affect your decision in this case?
That you will base your decision only on the evidence and
the law even [if] you feel sorry for [the] doctor?

"9. One of the claims in this case is for the wrongful
death of a 51 year old. The lawsuit seeks compensation on
behalf of the patient's mother, who is now 90 years old,
for the loss of society and companionship of her daughter.
If the plaintiffs prove that the doctor was negligent and
caused the patient's death, is there anything about these
facts that may prevent you from making a full and fair
assessment of the damages?

"10. One of the claims in this case is for conscious pain
and suffering of the patient who died. If the plaintiffs
prove that the doctor was negligent and caused the patient
to suffer, is there anything about this aspect of the case
that may prevent you from making a full and fair assessment
of the damages?

"11. In cases like this, the plaintiffs are not required
to prove their case beyond a reasonable doubt. They are
required to prove their case on the basis of more likely
true than not true. Will you have any difficulty in
applying this legal standard to this case or will you
likely require the plaintiffs to provide more proof than
more likely true than not true?
5

"12. Some people have difficulty sitting in judgment of
another. That is something that is required of judges and
when there is a jury trial, it is something that is
required of jurors. As you sit here now, can you assure us
that after you hear all of the evidence and the judge
instructs you on the law that you must follow, that you
will be able to carry out this important duty and judge
this case based only upon the facts and the law?"

The trial judge declined to ask the questions because "[t]oo

many of [them] . . . [were] almost over the line in prejudging

the case." Instead, the judge indicated that he would ask six

individual voir dire questions and promised the parties "an[]

opportunity for some reasonable follow-up." These were the

trial judge's six questions:

1. "Do you have any strong feelings about people who seek
money in a lawsuit?"

2. "Have you, any member of your immediate family or a
close personal friend ever filed or considered filing a
lawsuit against a healthcare provider?"

3. "Have you . . . ever had a negative experience in a
hospital with a nurse or a doctor?"

4. "Ever been employed in a hospital, by a hospital,
physician, medical group, healthcare facility or any other
medical organization?"

5. "Have you ever suffered from a medical condition that
you believe was caused by improper or inappropriate medical
care of any kind?"

6. "And do you have any particularized familiarity with
diabetes?"

After hearing the trial judge's six questions, the

plaintiffs' attorney requested that the prospective jurors be

asked if "they have any feelings against medical malpractice
6

lawsuits." The trial judge declined to ask that and told the

plaintiffs' attorney that he could not ask it either. The trial

judge explained that the prospective jurors "know it's a medical

malpractice case. I'm going to ask them generally if they have

any biases or opinions. I'm just going to cover it that way.

I'm not going to let you get into any questions that get on the

line in prejudging the case." The trial judge further explained

that his "general questions are questions about bias or is there

any reason why they couldn't be a fair and impartial juror in

this case based solely on the evidence . . . that's presented to

[them]. If they have a bias, I think it's going to be flushed

out that way."

The plaintiffs' attorney argued that "no one thinks that

they are not biased, they're not prejudiced. That's why

sometimes a much more pointed question needs to be asked." The

trial judge explained,

"[The prospective jurors are] going to know from the get go
from my preliminary comments and description of the case
that this is a medical malpractice case. So I appreciate
you looking to peel the onion a little bit further, but
once we start getting into those types of questions, I
think, you know, I just think it gets too close to -- even
if it's not prejudging, I think it's covered by the other
information that they're going to have and the questions
that are going to be put to them, both by the questions
they already answered in their confidential juror
questionnaires, the subsequent questions I'm going to ask
them as a group and then the individual questions I'm going
to ask them once they get into the witness box."
7

The plaintiffs' attorney objected to the exclusion of the

questions.

Voir dire began. Before questioning prospective jurors

individually, the trial judge explained to them that this was a

medical malpractice lawsuit. The judge asked them as a group,

"Is there anything about this case that gives you concern about

your ability to be a fair and impartial juror in your ability to

render a true and just verdict based solely on the evidence and

the law that's presented to you here in this courtroom?" The

trial judge also said, "At the end of this case, I'll instruct

you on the law, which you'll then apply to the case that was

presented. Would you have any trouble deciding this case based

only on the evidence at trial and the legal instructions I

explain[] to the jury?"

The first prospective juror was called for individual voir

dire, and, after the trial judge asked his six questions, the

following exchange took place between the plaintiffs' attorney

and the prospective juror:

Plaintiffs' attorney: "Bearing in mind that you're in the
medical field, you're a registered nurse, and I represent
the estate of the lady who died, am I starting off a little
bit behind the starting line from the get go or right at
the starting line?"

Prospective juror: "I'm not sure I understand the
question."
8

Plaintiffs' attorney: "Okay. So, would you tend to lean
toward one side or the other at the very beginning of the
case before you hear any evidence?"

The judge: "If she can be fair and impartial?"

Plaintiffs' attorney: "I'm sorry?"

The judge: "If she can be fair and impartial?"

The attorneys went to sidebar, and the judge explained that he

was not going to allow questions about whether the prospective

juror was "leaning one way or the other." The plaintiffs'

attorney objected. After the second prospective juror was

questioned, the trial judge allowed the plaintiffs to have a

standing objection that, "[b]ased upon the limited questioning

permitted, [they] don't have any evidence to challenge for

cause."

The trial judge allowed both parties to ask all of their

other follow-up questions without interruption. The plaintiffs'

attorney asked one prospective juror two questions: whether the

prospective juror knew one of the defense experts, and whether

the defense expert's place of employment (the same place of

employment as the prospective juror's spouse) would "potentially

impact [the prospective juror's] impartiality in this case."

The doctor's attorney asked eight prospective jurors seventeen

questions: (1) whether a prospective juror's "training or

experience with diabetes [as a registered nurse would] impact

[that prosecutive juror's] ability to be impartial"; (2) whether
9

a prospective juror had graduated from college; (3) three

questions about what a prospective juror meant by writing that

she was "a very empathetic person"; (4) two questions about a

lawsuit involving a prospective juror's sister; (5) why a

prospective juror stated that she hoped that she could be

impartial; (6) three questions about a negative experience that

a prospective juror had had with a doctor for that prospective

juror's father; (7) three questions about a prospective juror's

employment in a health care-related field; and (8) three

questions about an unemployed prospective juror's last job.

After the trial, the jury found that the doctor was not

negligent, and judgment entered accordingly. This appeal

followed.

2. Standard of review. We review limitations on attorney-

conducted voir dire for an abuse of discretion. See

Commonwealth v. Dabney, 478 Mass. 839, 848, cert. denied, 139

S. Ct. 127 (2018). Accord Commonwealth v. Garuti, 454 Mass. 48,

52 (2009) ("The scope of a voir dire is in the sound discretion

of the trial judge and will be upheld absent a clear showing of

abuse of discretion"). "An abuse of discretion occurs only

where the judge makes a clear error of judgment in weighing the

factors relevant to the decision . . . such that the decision

falls outside the range of reasonable alternatives." Matter of

the Estate of Urban, 102 Mass. App. Ct. 284, 296 (2023), quoting
10

Barbetti v. Stempniewicz, 490 Mass. 98, 105 (2022). If there

was an abuse of discretion, we review for whether it prejudiced

the plaintiffs' case. See G. L. c. 234A, § 74 ("any

irregularity in . . . impanelling . . . jurors . . . shall not

be sufficient to cause a mistrial or to set aside a verdict

unless objection to such irregularity or defect has been made as

soon as possible after its discovery or after it should have

been discovered and unless the objecting party has been

specially injured or prejudiced thereby").

3. Attorney-conducted voir dire. Superior Court "trial

judges must permit attorney-conducted voir dire upon request."

Dabney, 478 Mass. at 848. See G. L. c. 234A, § 67D (1) ("In

addition to whatever jury voir dire of the jury venire is

conducted by the court, the court shall permit, upon the request

of any party's attorney or a self-represented party, the party's

attorney or self-represented party to conduct an oral

examination of the prospective jurors at the discretion of the

court"); Rule 6(3)(b) of the Rules of the Superior Court (2017)

("The trial judge shall allow attorney or party voir dire if

properly [and timely] requested"). See also Commonwealth v.

Leonard, 103 Mass. App. Ct. 635, 637-638 & n.5 (2023) (error for

District Court trial judge to deny properly requested attorney-

conducted voir dire allowed by District Court standing order).

Nonetheless, judges "need not [approve] the specific questions
11

proposed by the [parties]." Commonwealth v. Steeves, 490 Mass.

270, 284 (2022), quoting Commonwealth v. Morales, 440 Mass. 536,

548-549 (2003). Judges may, for instance, exclude "questions

that are likely to confuse, misinform, or mislead the jury

because of their format or wording." Dabney, supra at 850-851.

Here, the trial judge acted within his discretion in

rejecting the plaintiffs' questions, at least as they were

phrased, as confusing and phrased in a manner that appeared

designed to persuade the jury before the evidence began. The

judge, although not asking the questions proposed by the

plaintiffs' attorney, did explore potential juror bias against

persons seeking money in a medical malpractice lawsuit, by

"ask[ing the prospective jurors] generally if they have any

biases or opinions" after telling them that the case was a

medical malpractice lawsuit. Additionally, the judge asked

several more pointed questions about prospective jurors'

experience with health care providers and medical issues,

including asking one question that was nearly identical to a

question proposed by the plaintiffs' attorney.4

4 The plaintiffs' second question ("Are you, a member of
your family or a close friend a health care professional?") is
nearly identical to the trial judge's fourth question ("Have
you, any member of your immediate family or a close personal
friend ever . . . been employed in a hospital, by a hospital,
physician, medical group, healthcare facility or any other
medical organization?").
12

We do not mean to suggest that the trial judge was required

to proceed the way he did. Among other restrictions, counsel is

forbidden from asking "[q]uestions framed in terms of how the

juror would decide this case," "questions about what evidence

would cause the juror(s) to find for the attorney's client," and

questions that "argue an attorney's or party's case or

indoctrinate any juror(s)." Rule 6(3)(e) of the Rules of the

Superior Court. There is no categorical bar against questions

that are specific to the case, nor is a party forbidden from

trying to discern a prospective juror's sympathies, such as, for

example, asking whether a prospective juror would have sympathy

with either an injured patient or a doctor who has been sued

that might affect the prospective juror's ability to be fair or

impartial. A judge would act well within the parameters of

judicial discretion in allowing questions phrased in this

manner. Indeed, we encourage trial judges to be amenable to

attorney-proposed questions to explore potential juror bias

specific to the case.

If phrased correctly, the questions proposed here may have

been acceptable. Indeed, the judge may well have acted within

his discretion in allowing even some of the questions on the

plaintiffs' list. We hold merely that excluding the particular

questions here while inquiring into the same topic area with

other questions was within the judge's broad discretion to
13

manage the jury selection process while accommodating attorney-

conducted voir dire. See Dabney, 478 Mass. at 852 ("judge did

not abuse her discretion in declining to allow defense counsel

to continue posing this specific question, and instead choosing

to probe potential juror bias on the question of the defendant's

right not to testify with her own form of that question"). See

also Commonwealth v. Espinal, 482 Mass. 190, 195 (2019), quoting

Commonwealth v. Lopes, 440 Mass. 731, 736 (2004) ("A trial

judge, who is aware of the facts of a particular case and can

observe firsthand the demeanor of each prospective juror, is in

the best position to determine what questions are necessary

reasonably to ensure that a particular jury can weigh and view

the evidence impartially").

Contrary to the plaintiffs' assertion that the trial judge

"confined plaintiff[s'] counsel's follow-up to asking

prospective jurors whether they could be 'fair and impartial,'"

the record reveals that the trial judge allowed the attorneys to

ask reasonable follow-up questions. Cf. Steeves, 490 Mass. at

287 ("the judge erred in instructing counsel that attorney-

conducted voir dire is properly limited to questions solely

relating to apparent bias, and does not include the opportunity

to elicit information that may help counsel exercise a

peremptory challenge"). Before voir dire began, the trial judge

explicitly told the attorneys that he would provide "an[]
14

opportunity for some reasonable follow-up" questions. See Rule

6(3)(c) of the Rules of the Superior Court ("When attorney or

party voir dire is allowed, the trial judge shall, at a minimum,

allow the attorneys or parties to ask reasonable follow-up

questions seeking elaboration or explanation concerning juror

responses to the judge's questions, or concerning any written

questionnaire"). The doctor's attorney took advantage of this

offer, asking seventeen questions of eight potential jurors.

This included questions about prospective jurors' employment,

negative experiences with medical providers, and jury

questionnaire answers.

The plaintiffs' attorney, by contrast, chose to ask follow-

up questions of only two prospective jurors. While the

plaintiffs' attorney was questioning the first prospective

juror, the trial judge appropriately intervened when the

prospective juror did not understand the attorney's confusing

question about whether he was "starting off a little bit behind

the starting line from the get go or right at the starting

line." See Dabney, 478 Mass. at 850 (although attorney's

proposed "question was well intentioned and directed to proper

subject matter," judge could exclude it as confusing). Without

interruption, however, the trial judge allowed the attorney to

ask another prospective juror whether the prospective juror knew

one of the defense experts, and whether the defense expert's
15

place of employment (the same place of employment as the

prospective juror's spouse) would "potentially impact [the

prospective juror's] impartiality in this case." The judge

allowed reasonable attorney follow-up during voir dire, so long

as the questions were not confusing or asking the prospective

jurors to prejudge the case. The judge acted within his

discretion.

Judgment affirmed.