MARIE TUCKER, Personal Representative v. R. SCOTT HARRIS & 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-1412

MARIE TUCKER, personal representative,1

vs.

R. SCOTT HARRIS & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, as the personal representative of the estate

of Maria Tucker, filed this wrongful death action against the

defendants in 2018. After a trial, the jury found the

defendants, on a special verdict form, not negligent in the care

and treatment of the decedent, and the court dismissed the

plaintiff's complaint. On appeal, the plaintiff claims (1)

several of the judge's evidentiary rulings were an abuse of

discretion, (2) the judge's restriction on "reptile" trial

tactics constituted a prior restraint on speech, (3) the judge

1 Of the estate of Maria Tucker.

2Jenna McNeill, John Doe, and John Doe Corporation.
Massachusetts General Hospital, by agreement of the parties, was
dismissed from this litigation before trial.
erred in declining to give a consciousness of liability

instruction, and lastly, (4) the cumulative effect of the errors

constituted a substantial risk of a miscarriage of justice. We

affirm.

1. Evidentiary rulings. The plaintiff argues that many of

the judge's evidentiary rulings excluding certain testimony and

electronic communications were an abuse of discretion. For

several of her challenges, the plaintiff fails to identify in

the record which communications and testimony were improperly

excluded. As citation to the record is required for appellate

argument, we will treat as waived a number of these claims. See

Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628

(2019). To the extent that she does cite to the record, the

exclusion of the communications and testimony were not an abuse

of discretion.

"Evidentiary rulings determining relevance, probative

value, and prejudice are left to the sound discretion of the

trial judge." Commonwealth v. West, 487 Mass. 794, 805 (2021).

When reviewing an evidentiary decision, we do not disturb the

judge's ruling simply because we may have reached a different

result. Laramie v. Phillip Morris USA Inc., 488 Mass. 399, 414

(2021). Instead, we will only disturb the judge's evidentiary

rulings where "the judge 'made a clear error of judgment in

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weighing the factors relevant to the decision such that the

decision falls outside the range of reasonable alternatives.'"

Commonwealth v. Adams, 495 Mass. 600, 602 (2025), quoting L.L.

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

As a preliminary matter, the plaintiff conflates relevance

with admissibility at numerous points in her brief. We find no

abuse of discretion in exclusions where the plaintiff does not

offer a proper reason for admissibility.

Regarding the electronic communications, the plaintiff

specifically identifies several text messages between Dr. Heyne

and Dr. McNeill as improperly excluded. However, there was no

abuse of discretion in excluding Dr. Heyne's messages where the

plaintiff failed to identify a proper nonhearsay reason for

their admission.3 Even if these messages were not hearsay, their

exclusion was not an abuse of discretion where the judge

considered the danger of prejudice in admitting them, noting

that the messages may portray Dr. Heyne as an expert witness,

3 The plaintiff claims, in part, that the messages were not
offered for their truth, but instead to show the supervisory
relationship between Dr. Heyne and Dr. McNeill. We disagree, as
plaintiff's counsel maintains in her brief that the text
messages would tend to show "that the discharge plan is unsafe"
and reflect "the circumstances surrounding discharge."
Furthermore, the probative value towards showing a supervisory
relationship was minimal, as it is undisputed that Dr. Heyne was
off duty and not the supervisor at the hospital at the time of
the messages.

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when he is not, and result in confusion for the jury. We also

discern no abuse of discretion regarding the plaintiff's

challenges to several excluded messages from Dr. McNeill.

Several of her text messages were properly excluded as

speculative, while others were excluded because any probative

value was substantially outweighed by the danger of unfair

prejudice. See Mass. G. Evid. § 403 (2025). As the judge's

evidentiary rulings were well within the range of reasonable

alternatives, we will not disturb them.

With regard to limitations on testimony, the plaintiff

argues that it was error for the judge to exclude the

plaintiff's experts' testimony beyond what was stated in the

expert disclosures. Where it is within the judge's discretion

to require an initial disclosure of anticipated testimony, we

find no abuse of discretion in this ruling as there was no

dispute at trial that the testimony sought to be elicited,

specifically a discussion of state and federal regulations, was

not in the experts' disclosures. See Mass. R. Civ. P.

26 (b) (4), 365 Mass. 772 (1974). See also Elias v. Suran, 35

Mass. App. Ct. 7, 10 (1993) ("a trial judge has broad discretion

in deciding whether to permit expert testimony when the

proponent has not given proper notice of the . . . subject

matter of the expert's anticipated testimony").

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Furthermore, there was also no abuse of discretion when the

judge precluded witnesses from testifying about the alleged

implicit bias of the defendants. The judge precluded the

testimony because its probative value towards the issues in the

case, if any, was substantially outweighed by the danger of

unfair prejudice to the defendants. See Mass. G. Evid. § 403.

Lastly, the plaintiff's challenge to the exclusion of

certain testimony about causation fails, as there was no

prejudice in the exclusion of this testimony where the jury

found the defendants not negligent and therefore did not reach

the issue of causation. See Drake v. Goodman, 386 Mass. 88, 94

(1982); Tarpey v. Crescent Ridge Dairy, Inc., 47 Mass. App. Ct.

380, 391 (1999).4

2. Prior restraint. The plaintiff also claims that the

court's preclusion of reference to "reptile" trial tactics is a

prior restraint, specifically finding error with the ruling

barring the use of the phrase "safety rules." The plaintiff

4 The plaintiff also argues that as a result of the
evidentiary rulings that occurred during trial, the judge should
have issued a curative instruction since plaintiff's counsel
relied on pretrial rulings, that were altered during trial, for
the opening statement. The plaintiff never requested a curative
instruction, and thus the argument is waived. See Aleo v. SLB
Toys USA, Inc., 466 Mass. 398, 403 n.11 (2013). See generally
Harlow v. Chin, 405 Mass. 697, 706 (1989).

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fails to cite any relevant legal authority to support this

argument.

Even if the plaintiff had properly raised this claim, it is

without merit. The plaintiff simply does not have a right of

unfettered expression within the confines of trial under the

First Amendment to the United States Constitution. For example,

rules of evidence and procedure, as well as a judge's exercise

of discretion to exclude certain matters, would not be affected

by the First Amendment. The only binding, precedential case

that the plaintiff cites in her brief, Shak v. Shak, 484 Mass.

658 (2020), is inapposite, as it concerns a prior restraint on a

party's speech outside of the courtroom.

3. Consciousness of liability. While the plaintiff claims

that it was error to deny her request for a consciousness of

liability instruction, she again fails to cite to any authority

to support her argument. This argument does not rise to the

level of appellate argument, and we treat it as waived. See

Mass. R. A. P. 16 (a) (9) (A). See also Adoption of Zak, 90

Mass. App. Ct. 840, 842 n.4 (2017).

Even if this argument were properly before us, it has no

merit, as the plaintiff presented no evidence that would give

the jury a reasonable basis to decide that any of the defendants

were conscious of their liability. See Mass. G. Evid.

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§ 1110(b). Cf. McNamara v. Honeyman, 406 Mass. 43, 54 n.10

(1989) (providing false or inconsistent statements can be

evidence of consciousness of liability); Parsons v. Ryan, 340

Mass. 245, 248 (1960) (providing false statements to police can

be evidence of consciousness of liability).

4. Substantial risk of miscarriage of justice. Lastly,

the plaintiff argues that a cumulation of errors resulted in an

unfair trial and asks us to review this case to determine if a

substantial risk of a miscarriage of justice was created. This

argument is misplaced, as that standard is applicable in

criminal appeals, not civil appeals. We are aware of no

comparable corollary for this standard in civil appeals, nor

does the plaintiff cite to one.

Furthermore, had the plaintiff properly articulated a

claim, it would be waived as the alleged errors were not

objected to. Specifically, the plaintiff claims that the trial

judge did not maintain an appearance of impartiality in various

instances throughout the trial. At every instance the plaintiff

highlights, the plaintiff did not object. In addition, there

was no request for a curative instruction regarding any of these

alleged errors. Because the plaintiff failed to preserve the

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issues, these arguments are waived. Hoffman v. Houghton Chem.

Corp., 434 Mass. 624, 639 (2001).

Judgment affirmed.

By the Court (Meade,
Massing & Brennan, JJ.5),

Clerk

Entered: February 19, 2026.

5 The panelists are listed in order of seniority.

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