15 Mass. App. Ct. 919 | Mass. App. Ct. | 1983
A jury, by special verdicts (Mass.R.Civ.P. 49[a], 365 Mass. 812 [1974]), has fastened liability on the defendant manufacturer of surgical blades (ASR) the tips of two of which broke off when the blades were used by the defendant neurosurgeon (Dr. Cantu) as he attempted to make a cruciate incision in the annulus of the disc between the plaintiff’s fifth lumbar and first sacral vertebrae. Neither tip was recovered when the disc was removed, and the disc cavity was filled with methylmethacrylate to fuse the vertebrae and immobilize the tips. Roth defendants have appealed from the single revised judgment which was entered against both of them following the plaintiff’s acceptance of a remittitur (Mass.R.Civ.P. 59[a], 365 Mass. 827 [1974]). 1. ASR has no cause for complaint that the judge admitted in evidence the discharge summary in the form in which it had originally appeared in the plaintiff’s hospital record and before it was altered at the behest of the hospital’s administrator. The jury were immediately instructed that the original summary was admitted only against the hospital (which was not dismissed as a party defendant until the close of the plaintiff’s case) and could not be considered in the case against ASR or any other defendant. That instruction was repeated and emphasized in the charge. See Bennett v. Cohen, 310 Mass. 714, 716 (1942); Commonwealth v. Cruz, 373 Mass. 676, 692 (1977) ; Liacos, Massachusetts Evidence 74, 441 (5th ed. 1981). We note that counsel for ASR was able to draw from the administrator on his cross examination a concession that “there was nothing inferior about the blades, as far as [he] was concerned.” 2. It was ASR’s metallurgist himself who, by unresponsive answers given in the course of his direct examination, first disclosed his previous employment by ASR as an expert in another products liability case brought against it. There was no objection (Mass.R.Civ.P. 46, 365 Mass. 811 [1974]) to the judge’s clarifying question as to the number of occasions on which the witness had been so employed or to the question by Dr. Cantu’s counsel as to whether the witness had charged as much in those cases as in this one. See Commonwealth v. Theberge, 330 Mass. 520, 527 (1953); Commonwealth v. Domanski, 332 Mass. 66, 77 (1954); Liacos, Massachusetts Evidence 71 (5th ed. 1981). In any event, the judge did not abuse his discretion in putting or allowing either question. See Commonwealth v. Franklin, 376 Mass. 885, 904 (1978) ; Olson v. Ela, 8 Mass. App. Ct. 165, 170 (1979); Collins v. Wayne Corp., 621 F.2d 777, 783-784 (5th Cir. 1980); Liacos, Massachusetts Evidence 144-145 (5th ed. 1981). 3. ASR failed to preserve the point now urged concerning its request for instruction no. 16. Compare Narkin v. Springfield, 5 Mass. App. Ct. 489, 491 (1977); Miller v. Boston & Me. Corp., 8 Mass. App. Ct. 770, 773-774 (1979). The further instructions which were given on the subject matter of that request were adequate, es
So ordered.