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Zucco v. Kane6/6/2002
e [an orthopedic surgeon] also testified that Dr. Kane complied with the appropriate standard of care in examining the plaintiff and that the plaintiff suffered from RSD before Dr. Kane's examination."
As can be seen from the foregoing summary, the defendants placed great emphasis on their claim that the plaintiff's RSD had preceded Dr. Kane's examination. The question of Dr. Kane's negligence, litigated in terms of whether he had exerted "a lot of" force during the examination as testified to by the plaintiff, or only "moderate" force as claimed by Dr. Kane, obviously depended on the jury's assessment of their credibility.
2. The settlement agreement and references to other documents. Claiming that the settlement agreement submitted to the Department of Industrial Accidents in January, 1995, contained admissions or prior inconsistent statements by the plaintiff, the defendants sought to introduce the agreement to challenge her veracity. The plaintiff vigorously opposed its admission, filing a motion in limine and making objections at each juncture. The judge, however, determined that the evidence was admissible to show prior inconsistent statements or admissions.
Prior to cross-examination of the plaintiff on her applications for benefits, and on the agreement, the judge instructed the jury that any worker's compensation benefits received by the plaintiff for some or all of her injuries had no bearing on the damages, if any, the plaintiff suffered as a result of the defendants' conduct. She then continued:
"The fact that you may hear any testimony regarding either application for such benefits or any, what is a called, lump sum agreement between her and her employer's insurer is being introduced in this particular case for a very limited purpose, and you may only consider it for this purpose: That is, if any of the statements made by Ms. Zucco were in any way inconsistent with her testimony during the course of this trial. You may consider that on the issue of her credibility and how much weight or importance you give to her testimony.
"Additionally, if there are any statements made in the course of either the application or the ultimate lump sum agreement, you may consider those particular matters as admissions by her; but again, only with respect to her claim against these two Defendants."
The plaintiff was then questioned, without objection, by counsel for IME concerning two documents which the trial judge did not allow to be introduced in evidence. The first was a document written by a Social Security Administration interviewer in connection with the plaintiff's application for disability benefits, summarizing a 1991 conversation with the plaintiff. The summary quoted the plaintiff as saying "that she does have a home health aide come in on a daily basis since the RSD has started, which was in 4/90." The second item on which the plaintiff was cross-examined was a 1994 application by the plaintiff for workers' compensation benefits listing the date of the injury to be "4/4/90" and describing the injury as " njured left foot, reflex sympathetic dystrophy."
The plaintiff was then cross-examined, over objection, concerning the lump sum settlement agreement which she had signed in January, 1995, a cross-examination which consisted primarily of reading the agreement and having the plaintiff acknowledge the reading was correct. Among the items read were the following (the italicized portions are preprinted parts of the agreement form):
"Diagnosis Reflex sympathetic dystrophy."
"Present Medical Condition Good"
"Third Party Action No"
"Give Brief History . . . On 4/4/90, t
Page 1 2 3 4 5 6 Massachusetts Personal Injury Attorneys
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