CHRISTOPHER CIAMPA v. BRIANA DURHAM & Others.

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-872
24-P-948

CHRISTOPHER CIAMPA

vs.

BRIANA DURHAM & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

These appeals arise from a jury trial to determine

liability for a driving accident that resulted in a lower-leg

amputation for the plaintiff, Christopher Ciampa. The jury

found only one of the defendants, Briana Durham (Durham),

responsible for the plaintiff's injuries; they did not impose

liability on the other defendants. The plaintiff and Durham

each filed motions for a new trial, which the trial judge

denied; both the plaintiff and Durham appealed, and the appeals

were paired for our consideration. On appeal, the plaintiff

maintains that the trial judge improperly foreclosed his ability

1 Jesus Landaverde, Sysco Corporation, and Sysco Boston,
LLC.
to question the jury venire on potential bias related to his

central theory of liability. Durham maintains that

codefendants' counsel violated the "golden rule" -- asking

jurors to put themselves in the position of a party -- through

witness questioning and in closing. Both maintain that the

verdict in favor of defendants Jesus Landaverde (Landaverde),

Sysco Corporation, and Sysco Boston, LLC (collectively, Sysco

defendants), was against the weight of the evidence. We affirm.2

1. Plaintiff's appeal. a. Limitation on attorney-

conducted voir dire. The plaintiff asserts that, during

attorney-conducted voir dire, the trial judge improperly

foreclosed his questions designed to expose juror bias against

his theory of liability. "We review limitations on attorney-

conducted voir dire for an abuse of discretion." Ross v.

Dietrich, 104 Mass. App. Ct. 458, 463 (2024). "[A] judge's

discretionary decision constitutes an abuse of discretion where

we conclude the judge made a clear error of judgment in weighing

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

decision falls outside the range of reasonable alternatives"

(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014). "If there was an abuse of discretion, we review

2 We acknowledge the amicus curiae letter submitted by the
Massachusetts Academy of Trial Attorneys.

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for whether it prejudiced the plaintiff['s] case. See G. L.

c. 234A, § 74." Ross, supra, at 464.3

Attorney-conducted voir dire is subject to Rule 6 of the

Rules of the Superior Court (2017), which mandates that a trial

judge "shall, at a minimum, allow the attorneys or parties to

ask reasonable follow-up questions" to prospective jurors'

responses to the judge or on the written questionnaire. Rule

6(3)(c). In addition, "[a]fter considering the goals set forth

in paragraph 1 [of the rule], the trial judge should generally

approve a reasonable number of questions that . . . may reveal

preconceptions or biases relating to . . . the nature of the

claims or issues expected to arise" and "inquire into the

prospective jurors' willingness and ability to accept and apply

pertinent legal principles as instructed." Id. Counsel and

parties may not ask "[q]uestions framed in terms of how the

juror would decide this case (prejudgment), including

hypotheticals that are close/specific to the facts of this case"

or "[q]uestions that seek to commit juror(s) to a result." Rule

6(3)(e)(i), (ii).

3 Through a footnote in her brief, Durham seeks to adopt the
plaintiff's arguments about jury voir dire. She may not do so.
She did not object at trial to these aspects of the voir dire,
nor did she raise this argument in her motion for a new trial.
"[I]ssues not raised below cannot be argued for the first time
on appeal." Boss v. Leverett, 484 Mass. 553, 563 (2020).

3
During voir dire, the plaintiff's counsel sought to ask a

question about "responsibility" for "waving or signaling" to

another driver. The judge interrupted, saying the question was

"so close to the case" that he did not want to know the jurors'

answers "before they hear the evidence." The plaintiff's lawyer

tried to rephrase the question, but the judge ultimately

excluded it, saying it was "so fact-intensive, to ask the right

question, it could lead to bias." Addressing the jury after the

sidebar, the judge further explained his reasoning:

"I'm trying to strike a balance . . . . We're just
determining if you can be fair and impartial jurors, and
it's not an opportunity to get into the facts of the case.
And so I have determined that the concept of . . . I don't
know what the truck driver's actions were. I wasn't there.
None of us were. I'm going to wait until you hear the
evidence before you're asked any questions about what it
means, whether liability can attach, and that type of
thing."

The trial judge's nuanced assessment of the proposed voir

dire questions was consistent with our law. As this court has

recognized, "[i]n the few signaling cases that have been decided

by the Massachusetts appellate courts, the courts have left for

the jury the interpretation of a hand signal, the reasonable

inferences that could be drawn from it, and the determination of

the over-all questions of negligence and contributory

negligence." Woods v. O'Neil, 54 Mass. App. Ct. 768, 772

(2002). See id. (collecting cases). Although the Woods court

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was careful to note that most of the cited signaling cases

predated the comparative negligence statute and did not address

the defendant's negligence, id., that distinction is not germane

here; the teaching of Woods is that the jury is responsible for

interpreting the hand signal and determining its legal

relevance. The judge assiduously preserved that role here,

limiting the plaintiff's voir dire question to ensure the jurors

would "wait until [they] hear the evidence before [they were]

asked any questions about what it means," and "whether liability

can attach."

Likening his question to those of a prosecutor asking

prospective jurors hypothetical questions about their ability to

apply "central legal concepts," the plaintiff maintains that the

judge improperly blocked him from exploring whether prospective

jurors were biased against his legal theory about signaling.

The cases cited by the plaintiff are not particularly

instructive. First, they stand only for the proposition that a

judge may allow questions, not that a judge must allow them.

See, e.g., Commonwealth v. Brown, 490 Mass. 171, 191 (2022) (no

abuse of discretion in allowing questions framed to avoid "CSI

effect"; questions "were intended to assess whether any of the

potential jurors harbored biases that could cause them to reject

any case based largely on circumstantial and witness evidence");

5
Commonwealth v. Andrade, 468 Mass. 543, 546-549 (2014) (no abuse

of discretion in questioning potential jurors about openness to

convicting based on circumstantial evidence; "questions did not

skew the jury that ultimately was selected toward conviction").

Second, critically, the questions in those cases previewed

standard jury instructions on the use of circumstantial

evidence, while the question here sought to determine whether

potential jurors were sympathetic to the plaintiff's legal

theory. Third, the Supreme Judicial Court has recently held

that a prosecutor's question about the "CSI effect," which was

framed specifically to the facts of the case, improperly sought

to commit the jurors to be predisposed to the Commonwealth's

case. See Commonwealth v. Montgomery, 495 Mass. 238, 245-247

(2025).4

"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

4 Citing cases from other jurisdictions, the plaintiff urges
us to adopt a presumption of prejudice from the denial of
"hypothetical questions regarding the central legal concepts
applicable to [a] party's theory of the case." "We are of
course not bound to follow those cases." Office & Professional
Employees Int'l Union, Local 6, AFL-CIO v. Commonwealth
Employment Relations Bd., 96 Mass. App. Ct. 764, 770 n.6 (2019).
We decline to do so here.

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and view the evidence impartially" (citation omitted).

Montgomery, 495 Mass. at 244. The judge did not abuse his broad

discretion in excluding the plaintiff's proposed line of

questioning.

b. Verdict against the weight of the evidence. On a

motion for new trial, a trial judge "may set aside a jury

verdict and order a new trial if the verdict is against the

clear weight of the evidence." J. Edmund & Co. v. Rosen, 412

Mass. 572, 576 (1992). A judge assesses "whether the verdict is

so markedly against the weight of the evidence as to suggest

that the jurors allowed themselves to be misled, were swept away

by bias or prejudice, or for a combination of reasons, including

misunderstanding of applicable law, failed to come to a

reasonable conclusion." Meyer v. Wagner, 57 Mass. App. Ct. 494,

504-505 (2003), quoting W. Oliver Tripp Co. v. American Hoechst

Corp., 34 Mass App. Ct. 744, 748 (1993). We review the denial

of a motion for a new trial for abuse of discretion. Kuwaiti

Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 466–

467 (2003).

The plaintiff contends that the evidence of Landaverde's

negligence was overwhelming and that the jury's finding of no

negligence for Landaverde (and, by extension, the Sysco

defendants) was therefore against the clear weight of the

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evidence. He asserts, as he did in his motion for a new trial,

that "preconceived, but uncovered biases against liability

predicated on waving/signaling" must underlie the jury's

verdict.

Assessing the "clear weight of the evidence" requires

grappling with all the evidence, and the plaintiff fails to

address the evidence that weighed on the other side of the

scale. The jury heard (among other countervailing evidence)

that Durham looked to her right before pulling out, but did not

see the plaintiff; that she understood that, "as a driver," it

was her "responsibility[] to make sure [the] lane is safe"

before entering it; that the responding police officer concluded

Landaverde "wasn't involved in the crash"; and that Landaverde

was not cited or charged after the accident. "It is the job of

the jury, not the judge, to weigh conflicting evidence and to

draw reasonable inferences." Meyer, 57 Mass. App. Ct. at 505.

Perceiving no error in the jury's performance of that job, we

discern no abuse of discretion in the judge's denial of the

motion for a new trial.

2. Durham's appeal. a. Standing. Durham did not sue

Landaverde or the Sysco defendants. Therefore, Durham's attempt

to appeal from the judgment in favor of her codefendants fails

for lack of standing. Monize v. Frisoli, 6 Mass. App. Ct. 50,

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51 (1978). See also Warren v. Boston & Maine R.R., 163 Mass.

484, 485-486 (1895) (rejecting appeal by one codefendant of

directed verdict in favor of other codefendant; "[n]o question

of liability of one of these railroad companies to the other was

being tried, and no issue of this kind was raised by the

pleadings"). Accordingly, we consider only the claims of trial

error raised in her brief.

b. Claims of trial error. Durham sought a new trial based

on purported "golden rule" violations by counsel for Landaverde

and the Sysco defendants, which, she contends, were "confounded"

by purported errors of law in the jury instructions.5

Specifically, she first claims error in a question and answer to

Brooks ("And you're not telling this jury that they would be

cited if they stopped and a vehicle -- and allowed a vehicle to

merge into them by signal?" "Correct"). In light of Durham's

5 All but one of Durham's assertions that counsel for
Landaverde improperly appealed to sympathy and that certain of
Lieutenant Brooks's testimony was erroneously admitted opinion
evidence are waived because, with one exception, Durham did not
object at trial to any of the now-challenged testimony and
statements. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338–
339 (1997). The single statement by Brooks that was admitted
over objection was not his opinion, but rather was a statement
made by Landaverde. Moreover, Durham's arguments on these
points consist solely of transcript excerpts without any
citation to applicable law. This does not rise to the level of
appellate argument, and we decline to consider it. See Kellogg
v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011);
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628
(2019).

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objection at trial, we review for prejudicial error, and discern

none. As an initial matter, the question is sufficiently opaque

that it is unclear that the jury would have understood it to put

them in the position of a person involved in the case. Cf.

Mass. G. Evid. § 1113(b)(3)(D) (2025) (in closing argument,

improper to ask jurors to put themselves in position of anyone

involved in case). Even had the jury understood this passing

reference, it was just that -- a passing reference -- and no

prejudice attached as a result. See Commonwealth v. Hampton, 91

Mass. App. Ct. 852, 855 (2017).

As to the assertion of error based on counsel's statement

in closing, we, like the trial judge, do not read it as asking

the jurors to put themselves in Landaverde's shoes. The

rhetorical device employed ("[n]ever once . . . have we

thought"), while perhaps inartful, can be understood when read

in context as urging the jurors to apply both their common sense

and the applicable law to the evidence. These invocations are

consistent with the judge's instructions to the jury, and do not

constitute error.

Finally, the judge committed no error by declining to

"educate the jury" about the state of law in other

jurisdictions. As Durham correctly acknowledges, "[p]arties are

entitled to an accurate statement of the law." Alfonso v.

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Lowney, 11 Mass. App. Ct. 338, 340 (1981). The cases cited by

Durham in her request for jury instructions, motion for a new

trial, and appellate brief are not binding Massachusetts law, so

no error arises from a failure to instruct the jury in

accordance with them. The judge's instructions on negligence

were correct, and nothing in the instructions prevented the

jurors from considering the plaintiff's theory of recovery or

Durham's defense.

Judgment affirmed.

Orders denying motions for
new trial affirmed.

By the Court (Massing, Hand &
Hershfang, JJ.6),

Clerk

Entered: September 2, 2025.

6 The panelists are listed in order of seniority.

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