Michel Nassif v. Alexander Tuan-Quang Nguyen.

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

24-P-882

MICHEL NASSIF

vs.

ALEXANDER TUAN-QUANG NGUYEN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court civil trial, a jury found that,

during a violent exchange stemming from an incident of road

rage, the defendant, Alexander Tuan-Quang Nguyen, committed a

battery against the plaintiff, Michel Nassif, but had not

committed intentional infliction of emotional distress

(intentional infliction). Nassif now appeals, arguing that he

should be granted a new trial because the judge erred in

admitting parts of Nguyen's testimony that should have been

precluded by collateral estoppel. Seeing no error, we affirm

the judgment.

Background. After the road rage incident, Nguyen was

convicted in the District Court of assault and battery and of
threatening to commit a crime based on his conduct against

Nassif. Nassif then brought this case against Nguyen to recover

damages for battery and intentional infliction of emotional

distress.1 The judge concluded that, under the principle of

collateral estoppel, Nguyen was precluded from relitigating the

three elements of battery already determined in his criminal

trial: that Nguyen used force against Nassif, did so

intentionally, and acted without justification or excuse.2 The

only issue left for the jury to consider regarding the battery

claim was whether Nguyen's use of force caused Nassif injury or

harm and, if so, the extent of Nassif's damages. In contrast,

the judge determined that none of the issues in Nassif's civil

claim for intentional infliction had been previously litigated

in the criminal case. Thus, the judge agreed to permit Nguyen

to testify to his version of the events as it related to

contested issues, subject to a limiting instruction.

1 Nassif's original complaint included claims for
intentional infliction on behalf of each of his two children who
witnessed the battery. These claims were dismissed at trial as
the children were not available to testify.

2 Although no evidence in the record shows that Nguyen
argued self-defense or other excuse or justification at the
criminal trial, we assume, as did the judge and both parties at
the trial of this action, that the issue of justification or
excuse was litigated in Nguyen's criminal trial.

2
At trial, Nguyen testified that Nassif had charged at him,

yelling, cursing, and "swinging." Then, Nguyen responded by

punching Nassif in the face, and when Nassif continued throwing

punches, Nguyen punched Nassif two or three more times, knocking

him unconscious. Additionally, during opening statements,

Nguyen's counsel argued "that [] Nassif threw a punch at

[Nguyen] that came up behind his head," to which Nguyen

responded by punching Nassif in the face. Nguyen's counsel

repeated this line of argument during his closing.

The jury returned a verdict for Nassif on his claim for

battery and awarded him $10,000 in damages. The jury also

answered "yes" to three out of four questions concerning

intentional infliction, finding that Nguyen intended, knew, or

should have known his conduct would inflict emotional distress;

that his conduct was extreme and outrageous; and that the

conduct caused Nassif emotional distress. Yet on the fourth

intentional infliction question, the jury answered that the

distress Nassif suffered was not "severe and of a nature that no

reasonable person could be expected to endure." Accordingly,

the jury returned a defense verdict on that count. Nassif

appealed.

Discussion. "When a party on direct appeal seeks reversal

and a new trial . . . we apply to preserved claims of error the

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well-known 'prejudicial error' standard of review."3 Wahlstrom

v. JPA IV Mgt. Co., 95 Mass. App. Ct. 445, 448 (2019). "[I]f

there has been an error, we will reverse and, where appropriate,

order a new trial unless we can 'say with substantial confidence

that the error would not have made a material difference.'"

Id., citing DeJesus v. Yogel, 404 Mass. 44, 49 (1989).

1. Error. First, we consider whether it was error for the

judge to admit Nguyen's testimony in light of the collateral

estoppel effect of Nguyen's conviction. We see no error.

Offensive collateral estoppel "occurs when a plaintiff

seeks to prevent a defendant from litigating issues which the

defendant has previously litigated unsuccessfully." Pierce v.

Morrison Mahoney LLP, 452 Mass. 718, 730 (2008). "[A] party to

a civil action against a former criminal defendant may invoke

the doctrine of collateral estoppel to preclude the criminal

defendant from relitigating an issue decided in the criminal

prosecution." Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737,

742 (1985). Collateral estoppel "does not require mutuality of

parties, so long as there is an identity of issues, a finding

adverse to the party against whom it is being asserted, and a

3 Although we doubt whether Nassif's brief comment to the
judge before empanelment was sufficient to preserve his
objection to Nguyen's testimony, we assume in Nassif's favor
that it was.

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judgment by a court or tribunal of competent jurisdiction."

Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 (1992).

"Ultimately, fairness is the decisive consideration in

determining whether to apply offensive issue preclusion"

(quotations and citations omitted). Pierce, supra. In

reviewing such a decision, "[w]e afford the trial judge wide

discretion" (quotation and citation omitted). Id. at 731.

Here, the judge determined that offensive collateral

estoppel precluded Nguyen from contesting that he intentionally

used force against Nassif without justification or excuse, i.e.,

that he committed a battery. But, as Nassif acknowledged at

oral argument, the previously litigated elements of criminal

battery do not overlap with the elements of intentional

infliction. So, the judge correctly determined that Nguyen was

not precluded from contesting any element of the intentional

infliction claim. See Polay v. McMahon, 468 Mass. 379, 385

(2014) (plaintiffs alleging intentional infliction required to

show (1) defendant "intended, knew, or should have known that

his conduct would cause emotional distress"; (2) "conduct was

extreme and outrageous"; (3) "conduct caused emotional

distress"; and (4) "emotional distress was severe");

Commonwealth v. Porro, 458 Mass. 526, 529 (2010) (assault and

battery is "the intentional and unjustified use of force upon

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the person of another"). Thus, the judge properly permitted

Nguyen to testify to his recollection of events, at least as

they related to the intentional infliction claim.

Nassif argues, however, that in so doing, the judge allowed

Nguyen to assert that Nassif was the initial aggressor, thereby

suggesting to the jury that Nguyen had a justification or excuse

for punching Nassif. We are unpersuaded. Although the judge

recognized that Nguyen's testimony could be used "to justify or

excuse his conduct," the judge addressed this concern by

providing clear, forceful limiting instructions, which we

presume the jury followed. Harris-Lewis v. Mudge, 60 Mass. App.

Ct. 480, 490 (2004). He instructed the jury that they "must

accept the first three elements of [Nassif's] battery claim as

having been proven" and more specifically that "[Nguyen] used

force against [Nassif], . . . intentionally, and . . . without

justification or excuse." The judge gave similar instructions

to the venire prior to jury selection and to the jury after

closing arguments and when explaining the verdict slip. The

judge also drafted a verdict slip that asked the jury only about

properly contested issues. Indeed, the verdict slip treated as

a given that Nguyen had engaged in "unjustified and unexcused

use of force" and asked only whether Nassif had proved that this

caused him harm and, if so, what damages were appropriate.

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Nassif did not object to these measures or suggest they were

insufficient to protect him from prejudice on the battery claim.

Nguyen did testify that Nassif came at him and "immediately

started swinging," but he did not argue that this was a

justification or excuse for his own conduct. To the contrary,

during closing argument, counsel for Nguyen stated that Nguyen

was "responsible for the punches."

Nguyen's recollection of the events was relevant to the

contested issues, especially the issue whether his conduct was

so "extreme and outrageous" as to amount to intentional

infliction. See Polay, 468 Mass. at 385. It was within the

judge's discretion to determine that preventing Nguyen from

testifying to his recollection of events would be unfair to

Nguyen, whereas allowing that testimony, accompanied by limiting

instructions, would not be unfair to Nassif. See Pierce, 452

Mass. at 731. Thus, the judge properly permitted Nguyen to

testify to his recollection of events so he could defend himself

against Nassif's intentional infliction claim.

2. Prejudice. Even if it had been an abuse of discretion

for the judge to admit Nguyen's testimony, the testimony did not

unfairly prejudice Nassif. See Wahlstrom, 95 Mass. App. Ct. at

448. Out of all the questions on the verdict slip, the jury

answered "no" only to the question asking whether Nassif's

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emotional harm was "severe and of a nature that no reasonable

person could be expected to endure it." That question addressed

the degree and type of emotional harm Nassif suffered from the

incident, not the parties' conduct during the incident.

Nguyen's testimony, which related almost exclusively to his

recollection of the incident, would not have prejudiced the jury

on the question of the severity and nature of Nassif's emotional

distress.

Additionally, the judge took care to mitigate potential

prejudice to Nassif by providing clear, forceful limiting

instructions, which we presume the jury followed. Harris-Lewis,

60 Mass. App. Ct. at 490. Nonetheless, Nassif argues that we

should not follow that presumption, because "real damage ha[d]

been done." Allen v. Boston Elevated Ry. Co., 212 Mass. 191,

194 (1912). The "real damage" Nassif points to is the admission

of the testimony itself, which he suggests could have led the

jury to believe that he was the initial aggressor. The jury

found, however, that Nguyen's conduct during the battery was in

fact extreme and outrageous and that it caused Nassif emotional

distress, demonstrating that they were able to evaluate

rationally the individual strengths and weaknesses in Nassif's

case. See Commonwealth v. Butler, 445 Mass. 568, 576 (2005)

(that jury acquitted defendant of one charge indicated that jury

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heeded judge's limiting instructions). Thus, even if it had

been error for the judge to admit Nguyen's testimony, the

verdict was unaffected.

Judgment affirmed.

By the Court (Sacks,
Englander & Walsh, JJ.4),

Clerk

Entered: July 8, 2025.

4 The panelists are listed in order of seniority.

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