DAVID L. WINN v. MADISON SECURITY GROUP, INC., & 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

22-P-70

DAVID L. WINN

vs.

MADISON SECURITY GROUP, INC., & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises from the award of compensatory and

punitive damages following a jury trial on a claim for

employment discrimination. The plaintiff, David Winn, is a

double amputee who lost his position as a security guard at the

defendant company,2 Madison Security Group, after undergoing a

surgery and being unable to use his prosthetic legs for a period

of time.3 On appeal, the defendants argue that (1) their request

1 Angela Culot, who was later dismissed voluntarily, and Michael
J. Svizzero.
2 Codefendant Michael J. Svizzero was Madison Security Group's

vice president of operations when the alleged discrimination
occurred.
3 The plaintiff testified as to the extent and origin of his

disability. He was burned at the age of twelve, and his legs
were amputated as a result of the burns and infection. He
adapted well, however, and "did everything in my wheelchair that
I could have done . . . if I had my legs." He is, inter alia,
able to traverse stairs without the use of prosthetics and drag
his wheelchair behind him.
for a mistrial should have been granted after the plaintiff

asked a series of unfairly prejudicial questions to a witness

during trial, (2) the punitive damage award was both unsupported

by the evidence and unconstitutional, and (3) their request for

a new trial or judgment notwithstanding the verdict should have

been granted. We affirm.

Discussion. 1. Request for mistrial. We first address

the defendants' argument that the trial judge erred in not

granting their motion for a mistrial after an attorney for the

plaintiff pursued an improper line of questioning.4 While we

agree that the questions were improper, we conclude that the

steps taken by the judge toward addressing the infraction were

sufficient to cure any potential prejudice to the defendants,

and that there was no error in denying the motion for mistrial.

It is well established that "trial judges must take care to

avoid exposing the jury unnecessarily to inflammatory material

that might inflame the juror' emotions and possibly deprive the

defendant of an impartial jury." Commonwealth v. Berry, 420

Mass. 95, 109 (1995). See also Mass. G. Evid. § 403 (2022).

However, "[a] trial judge may attend to complaints in the

4 While questioning Svizzero regarding an alleged communication
made by another employee of Madison Security Group, the
plaintiff asked a series of questions regarding pending rape
charges against that employee. The defendants promptly
objected, and the trial judge sustained those objections.

2
admission of irrelevant or prejudicial evidence during trial by

excising such evidence and by giving a careful, forceful

instruction to the jury to disregard those matters withdrawn

from their consideration." Harris-Lewis v. Mudge, 60 Mass. App.

Ct. 480, 490 (2004). "We review a judge's decision not to

declare a mistrial for abuse of discretion." Evans v. Lorillard

Tobacco Co., 465 Mass. 411, 459 (2013), citing Fialkow v. DeVoe

Motors, Inc., 359 Mass. 569, 572 (1971).

On appeal, the parties do not dispute that the questions

posed by the plaintiff's attorney were impermissible. The judge

responded to the improper questions by sustaining the objections

and by issuing a contemporaneous instruction to the jury that

they should disregard the questions, and by reiterating that

curative instruction during his final jury instructions.5 Both

5 Immediately following the improper questions, the judge
instructed the jury:

"The other thing we were talking about, as you might
expect, has to do with when can someone talk about [] the
trustworthiness of someone who's not here in the courtroom?
And the answer is almost never, with rare exception because
we don't allow witnesses to vouch or criticize other
people, as a general rule. So as a general rule we don't
ask questions about people who aren't in the witness stand.
As a second general rule, there are very limited
circumstances where information not related to this dispute
can come in concerning someone's character. When you talk
about criminal charges, or pending charges, or allegations,
that doesn't have anything to do with this dispute, it has
to do with someone's trustworthiness. On rare occasions if
a person is in the witness stand you may be able to get
into those types of questions. That is not the case here

3
instructions were thorough and reminded the jury to ignore the

questions because they were against court rules. We "presume[]

because we're talking about a person that's not here in the
courtroom, and we're talking not about a conviction but an
allegation or a charge. And that is just not permitted.

"So I'm going to ask you to strike those questions you
heard that made any reference -- strike from your mind, and
not play any role whatsoever in your decision deciding the
case the question you heard from Mr. Martin about something
about alleged rape or attempted rape, which I know nothing
about. If I did I probably wouldn't tell you any more
about it anyway, but I know nothing about that, don't know
if it's true, et cetera. But more important, we don't ask
witnesses about other witnesses, let alone about alleged
criminal charges."

During the final jury instructions, the judge said:

"So I've told you several times to make sure your verdict
is based on the evidence. Let me tell you what the
evidence is. The evidence consists of the testimony of
witnesses as you recall it and the things that have been
marked as exhibits. You'll have those exhibits with you in
the jury room. Other things are not evidence and you
should not consider them. Questions from the lawyers are
not evidence. It's the answers that matter. If a lawyer
asked a question and I sustained an objection and it wasn't
answered, then neither the question nor the fact that the
witness did not answer is not evidence. If I struck any
evidence or told you to disregard it, or any part of an
answer by a witness, that part of the testimony is not
evidence and shouldn't be considered. You'll recall in
this case that I instructed you to disregard a few
questions a couple days ago that the plaintiff's counsel
posed because they concerned things that I determined are
entirely unrelated to the case and to the issues you have
to decide. Counsel shouldn't have asked those questions.
It's essential that you stay focused on the issues that do
matter and the evidence that was admitted in the case. For
that reason you should follow my instructions to strike
those improper questions and any matters raised by those
questions. They were a violation of the rules and you
should put them out of your mind."

4
that such [instructions are] followed by the jury." Harris-

Lewis, 60 Mass. App. Ct. at 490. The defendants argue that we

should conclude the jury did not follow the trial judge's

instruction because its award of punitive damages was excessive,

but for reasons discussed infra, we disagree and decline to do

so.6

2. Punitive damages. We next address the defendants'

challenges to the sufficiency of the evidence supporting a

punitive damage award and the constitutionality of the punitive

damages awarded in this case. The defendants argue both that

(1) the evidence was insufficient to support the punitive damage

award and (2) the punitive damage award was unconstitutional.

We disagree on both fronts.

a. Sufficiency of the evidence. "[P]unitive damages may

be awarded for conduct that is outrageous, because of the

defendant[s'] evil motive or [their] reckless indifference to

the rights of others" (citation omitted). Haddad v. Wal-Mart

Stores, Inc., 455 Mass. 91, 107 (2009). "Punitive damages are

6 We note the defendants' argument that the trial judge
improperly referenced a news article he discovered on the
Internet, which was not in evidence, before ruling on their
renewed motion for a mistrial. Because the issue was not raised
in the trial court, either at trial or in the defendants'
posttrial motions, it is waived on appeal. See Cottam v. CVS
Pharmacy, 436 Mass. 316, 323 (2002). We further note that the
defendants did not object to either curative instruction, so
their arguments in that respect are similarly waived. Id.

5
warranted where the conduct is so offensive that it justifies

punishment and not merely compensation." Charles v. Leo, 96

Mass. App. Ct. 326, 345 (2019), quoting Haddad, supra at 110.

An award of punitive damages requires a determination of the

defendants' intent or state of mind, determinations properly

left to the jury, whose verdict should be sustained if it could

reasonably have been arrived at from any evidence presented.

See Haddad, supra at 107.

Here, the record is replete with evidence allowing the jury

to reasonably conclude that the defendants were recklessly

indifferent to the rights of the plaintiff. The plaintiff was

highly motivated and sought to return to work quickly after his

surgery. Although the defendants did engage with the plaintiff

regarding an alternate work placement, their effort was

lackluster. They repeatedly declined to allow him to

demonstrate his ability to perform the requirements of his

position and failed to contact the Division of Capital Asset

Management and Maintenance (DCAMM) to discover whether it was

possible for him to continue to work at his initial jobsite.7

Despite the plaintiff's earnest efforts and apparent ability to

work, the defendants did not allow him to do so due to his

7 Although Svizzero attempted to testify that he only failed to
contact DCAMM because he thought another Madison executive had
done so, that answer was struck from the record and was not
before the jury and therefore we do not consider it.

6
disability. Although the defendants presented a different

interpretation of the evidence at trial and in briefing to this

court, the jury were free to arrive at their own conclusion.8

See DaPrato v. Massachusetts Water Resources Auth., 482 Mass.

375, 392-393 (2019).

b. Amount of punitive damages. To the extent that the

defendants argue that the punitive damage award was

unconstitutionally high, we review the issue de novo. See

Charles, 96 Mass. App. Ct. at 352 n.15 (review of remittitur in

punitive damages context is de novo). See also Cooper Indus. v.

Leatherman Tool Group, Inc., 532 U.S. 424, 431 (2001) (de novo

review in federal context).

Having done so, we discern no constitutional bar to the

punitive damages awarded in this case. To support their

argument that the award was unconstitutional, the defendants

rely heavily on the high ratio of punitive damages as compared

to compensatory damages.9 It is true that "[t]he principle that

exemplary damages must bear a 'reasonable relationship' to

compensatory damages has a long pedigree." BMW of N. Am., Inc.

8 We note and agree with the trial judge, in his decision and
order on the defendants' posttrial motions, that "Madison's
wholesale avoidance of Winn's requests and its obligations under
discrimination law, could support a high level of
reprehensibility."
9 The plaintiff was awarded $7,688 as compensatory damages for

back pay and $300,000 as punitive damages.

7
v. Gore, 517 U.S. 559, 580 (1996). However, the Supreme Court

has "consistently rejected the notion that the constitutional

line is marked by a simple mathematical formula, even one that

compares actual and potential damages to the punitive award"

(emphasis omitted). Id. at 582. "Indeed, low awards of

compensatory damages may properly support a higher ratio than

high compensatory awards, if, for example, a particularly

egregious act has resulted in only a small amount of economic

damages." Id. As discussed supra, the jury were free to

conclude that the defendants' discrimination against the

plaintiff was egregious.

We further note that the plaintiff, a highly motivated

individual, took actions that may have minimized the

compensatory damages awarded to him. After losing his

employment with the defendants, he quickly found a new job,

meaning that his lost wages were less than they might have been

otherwise. Further, the trial judge observed the plaintiff to

have made a "stoic presentation at trial," which may have

reduced his compensatory damages for emotional harm. These

facts do not lessen the egregiousness of the defendants'

discrimination against the plaintiff, though they may have

8
resulted in an increased ratio of justified punitive damages

relative to compensatory damages.10

3. Posttrial motions. Finally, we address the defendants'

argument that the trial judge erred by denying their posttrial

motions. Following the entry of judgment, the defendants moved

for, inter alia, judgment notwithstanding the verdict and a new

trial. They argued that there was insufficient evidence to

support the jury's conclusion that they engaged in unlawful

discrimination against the plaintiff. We disagree.

a. Motion for a new trial. "The grant or denial of a new

trial . . . will only be disturbed if the judge has abused his

discretion." Turnpike Motors, Inc. v. Newbury Group, Inc., 413

Mass. 119, 127 (1992). See Wahlstrom v. JPA IV Mgt. Co., 95

Mass. App. Ct. 445, 448 (2019). "[T]he judge should only set

aside the verdict if satisfied that the jury failed to exercise

an honest and reasonable judgment in accordance with the

controlling principles of law" (quotations and citation

omitted). Turnpike Motors, Inc., supra. "[A] judge should

exercise this discretion only when the verdict 'is so greatly

10The defendants also argue that the award of punitive damages
was unconstitutional because the plaintiff did not demonstrate
that their conduct amounted to "reckless indifference" regarding
the plaintiff's rights. See Labonte v. Hutchins & Wheeler, 424
Mass. 813, 826 (1997) (punitive damages permitted only in case
of outrageous conduct, evil motive, or reckless indifference to
rights of others). However, there was ample evidence at trial
to support such a conclusion.

9
against the weight of the evidence as to induce in his mind the

strong belief that it was not due to a careful consideration of

the evidence, but that it was the product of bias,

misapprehension or prejudice.'" Id., quoting Scannell v. Boston

Elevated Ry., 208 Mass 513, 514 (1911).

We agree with the trial judge that, in this context, the

defendants' "challenge[] turn[s] on re-arguing the evidence."

Despite the defendants' assertion otherwise, the jury were

equipped with ample evidence to permit them to conclude that the

defendants were aware of their obligation to engage in an

interactive process with the plaintiff but failed to

meaningfully do so. We discern no abuse of discretion in

denying the motion for a new trial.

b. Judgment notwithstanding the verdict. In reviewing the

denial of a motion for judgment notwithstanding the verdict, we

"evaluate whether 'anywhere in the evidence, from whatever

source derived, any combination of circumstances could be found

from which a reasonable inference could be made in favor of the

[nonmovant].'" O'Brien v. Pearson, 449 Mass. 377, 383 (2007),

quoting Turnpike Motors, Inc., 413 Mass. at 121.

As has been previously discussed, "the evidence presented

to the jury [was] sufficient to warrant denial of the

defendants' motion[] for . . . judgment notwithstanding the

verdict." O'Brien, 449 Mass. at 383.

10
4. Attorney's fees. The plaintiff requests that we award

attorney's fees for defending this appeal. General Law c. 151B,

§ 9, provides for the mandatory award of attorney's fees, and

that provision "would ring hollow if it did not necessarily

include a fee for the appeal." McLarnon v. Jokisch, 431 Mass.

343, 350 (2000), quoting Yorke Mgt. v. Castro, 406 Mass. 17, 20

(1989). Accordingly, we award the plaintiff reasonable

attorney's fees and costs. "[The plaintiff] may file [his]

application for fees and costs, with any appropriate supporting

materials, with the clerk of the [Appeals Court] within fourteen

days of the date of the rescript." Fabre v. Walton, 441 Mass.

9, 11 (2004). The defendants may respond to the petition within

fourteen days of said filing.

Amended judgment affirmed.

Order on posttrial motions
affirmed.

By the Court (Wolohojian,
Blake & Desmond, JJ.11),

Clerk

Entered: April 24, 2023.

11 The panelists are listed in order of seniority.

11