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-769

GEORGE FRANCISCO

vs.

ROBERT PETTIE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, George Francisco, filed a complaint in the 

Superior Court against the defendants, alleging negligence

resulting in a motor vehicle accident. Answering special 

verdict questions, the jury found that the defendant, Robert 

Pettie, was negligent but that his negligence was not the cause 

of the plaintiff's injuries. Judgment entered for the 

defendants. The plaintiff filed a motion for additur and/or 

reconsideration or in the alternative for a new trial; the 

motion was denied. The plaintiff timely appealed the judgment 

and denial of the motion. We affirm.

Background. In 2014, while in stop and go traffic, the 

plaintiff was rear-ended by a Toyota Tacoma driven by Pettie on 

1 American Gutter Cleaning and Installations, Inc.
2

Interstate Highway 93 near Boston. Pettie estimated that he was 

traveling between five and thirteen miles per hour shortly 

before the accident. The impact caused the front of the Tacoma 

to become lodged in a trailer hitch extending from the rear of 

the plaintiff's Ford F-350. The parties do not dispute that 

Pettie was at fault for the accident or that he was driving a 

vehicle owned by his employer, defendant American Gutter 

Cleaning and Installations, Inc. The question for the jury was 

whether Pettie's negligence was the cause of the plaintiff's 

claimed injuries.2

Discussion. The plaintiff raises multiple issues on 

appeal, none of which persuades us that the judgment should be 

disturbed. We address each in turn.

1. Inconsistent verdict. The plaintiff argues that the 

jury's answers to the special verdict questions (special 

questions) were inconsistent and therefore the verdict cannot 

stand. Notably, the plaintiff does not contend that the special 

questions were inconsistent -- in fact, the judge adopted the 

plaintiff's proposed questions. Rather, the plaintiff bases his 

argument on the judge's answer to a jury question received 

during its deliberations. The jurors asked the following:

2 The plaintiff claimed that as a result of Pettie's negligence 

he "sustained serious injuries to his neck, back, head, arms and 

other injuries, suffered great mental and emotional pain, was 

obliged to expend monies for medical care and attendance."
3

"Regarding Question 1 on the special verdict questions, in order 

to satisfy the legal definition of negligence does the plaintiff 

have the burden of proving all, underlined, all four elements 

cumulatively." The note referenced "pages 23 to 24 of [the 

judge's] charge to the jury," which the jury had in the jury 

room.3

After discussion with the attorneys, the judge said that he 

planned to answer the question as follows: "The simple answer 

to the jury's question is, yes. The plaintiff must prove each 

of the elements of his negligence claim by a preponderance of 

the evidence . . . although it need not be the same seven jurors 

who agree as to each element." Both attorneys said they 

"agreed" with the proposed answer, and it was provided to the 

jury in writing. On appeal, the plaintiff contends that if the 

jury answered "yes" to the first special question, then in light 

of the judge's answer, the second special question would be 

moot. And because the jury answered "yes" to special question 

one and "no" as to special question two, the judge allowed a 

"contradictory and inconsistent verdict to stand."

We first observe that the plaintiff did not object to and 

in fact agreed with the judge's proposed answer to the jury 

question. Passing on whether this constitutes waiver, the 

3 The jury received a written copy of the judge's charge to 

assist in its deliberation.
4

plaintiff's failure to object to the alleged inconsistent 

verdict before the jury was discharged is fatal to his claim. 

See Adams v. United States Steel Corp., 24 Mass. App. Ct. 102, 

104 (1987) ("A party must object to inconsistent answers to 

special questions before the jury is discharged"). If there is 

no timely objection, any claim of error is waived and cannot be 

raised for the first time on appeal. See Shafnacker v. Raymond 

James & Assocs., Inc., 425 Mass. 724, 731 (1997). Here, 

approximately ten minutes after the judge answered the jury's 

question, it returned with a verdict. The clerk, without 

objection, then recorded the verdict. The plaintiff's request 

to then poll the jury was not a substitute for the failure to 

object. This claim is therefore waived.4 See Adams, supra.

2. Cross-examination of defense expert witness. The 

plaintiff contends that the judge erred in precluding him from

cross-examining the defendants' expert witness on his status as 

an employee of the defendants' liability insurer. We review for 

4 Although the judge's answer to the jury's question could have 

been more precise, taking the instructions as a whole, the 

jury's answers to the two special questions can be harmonized

and thus are not inconsistent. See Solimene v. B. Grauel & Co., 

399 Mass. 790, 800 (1987). A party's action may be negligent, 

but not the legal cause of the other party's injuries. See 

Restatement (Second) of Torts §§ 430, 431, and comments (1965). 

This is particularly true here, as Pettie admitted the accident 

was his fault but challenged whether that negligence was the 

cause of the plaintiff's claimed injuries. See Service Publ., 

Inc. v. Goverman, 396 Mass. 567, 573 n.8 (1986).
5

an abuse of discretion or error of law. See Antoniadis v. 

Basnight, 99 Mass. App. Ct. 172, 176 (2021). Ordinarily, a 

plaintiff may not elicit testimony showing that a defendant has 

liability insurance because evidence of insurance can lead to 

exaggerated verdicts for plaintiffs. See Goldstein v. Gontarz, 

364 Mass. 800, 808 (1974). However, the rule does not 

necessitate exclusion of evidence of liability insurance when 

offered to prove bias of a witness. See McDaniel v. Pickens, 45 

Mass. App. Ct. 63, 66-67 (1998).

After consultation with the judge, the parties agreed that 

plaintiff's counsel would not elicit testimony about the

defendants' liability insurance. Rather, the plaintiff was 

permitted to elicit evidence that the expert witness was not 

impartial and independent, but rather that he was an employee of 

and intricately connected to the defendants. On these facts, 

because the parties agreed, the judge did not abuse his 

discretion in limiting cross-examination. However, the 

defendants are cautioned that in future cases, if an expert 

witness is connected to their liability insurer as this expert 

was, they should expect that such will be brought out in crossexamination, as it is appropriate evidence of bias.

3. Missing witness instruction. The plaintiff argues that 

the judge erred in denying his motion in limine that requested a 

missing witness instruction regarding the passenger in the 
6

Tacoma. We review for abuse of discretion. See Mazzoleni v. 

Cotton, 33 Mass. App. Ct. 147, 150-151 (1992). Here, the judge 

determined that the passenger's testimony would be cumulative of 

other evidence, particularly where Pettie admitted that he was 

at fault for the accident. See Commonwealth v. Tripolone, 57 

Mass. App. Ct. 901, 901 (2003). And the judge allowed 

plaintiff's counsel to question Pettie regarding the passenger. 

See Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 526-

527 (1992). There was no error.

4. Learned treatise. The plaintiff claims that the judge 

abused his discretion in denying his motion in limine to enter 

into evidence two articles, contending that they were learned 

treatises. The articles were authored by the owner of a company 

that sells safety equipment for receiving hitches, and explained

that there is an increased risk of whiplash when someone is 

rear-ended in a vehicle with a receiving hitch. There was no 

error as the judge properly found that the articles were not 

learned treatises where the author was selling a product, see 

Federico v. Ford Motor Co., 67 Mass. App. Ct. 454, 458-459 

(2006), there was no evidence that the articles were from a 

reliable authority, see Commonwealth v. Sneed, 413 Mass. 387, 

396 (1992), and the judge allowed plaintiff's counsel to 
7

question the defendants' expert witness about the contents of 

the articles.5

5. Exclusion of citation issued by police. The plaintiff 

contends that the judge erred in excluding the traffic citation 

issued to Pettie by the responding State police trooper. There 

was no error as the citation amounted to a determination of 

fault, see LePage v. Bumila, 407 Mass. 163, 164-167 (1990), 

contained second level hearsay, see Julian v. Randazzo, 380 

Mass. 391, 394 (1980), and Pettie did not contest that he was at 

fault for the accident.

6. Motion for directed verdict. The plaintiff contends 

that the judge erred in denying his motion for a directed 

verdict on the issue of liability. As did the trial judge, we

"construe the evidence in the light most favorable to the 

nonmoving party and disregard that favorable to the moving 

party." O'Brien v. Pearson, 449 Mass. 377, 383 (2007). We ask 

whether a reasonable inference can be drawn in favor of the 

nonmoving party. See Dobos v. Driscoll, 404 Mass. 634, 656, 

cert. denied, 493 U.S. 850 (1989). Pettie admitted that the 

accident was his fault, and it was for the jury to determine 

5 Because this is not a medical malpractice action, even if the 

judge found that the articles were learned treatises, 

plaintiff's counsel would only have been permitted to read the 

contents of the article into evidence on cross-examination. See 

Kace v. Liang, 472 Mass. 630, 645 (2015).
8

whether the plaintiff proved all four elements of negligence to 

establish legal liability. See Adams v. Congress Auto Ins. 

Agency, Inc., 90 Mass. App. Ct. 761, 765 (2016).6 There was no 

error.

7. Exclusion of plaintiff's expert witness. The plaintiff 

next argues that the judge "erred by cancelling [his] ability to 

call [his] expert witness." He cites no authority for his 

proposition that the due process clause grants litigants a right 

to present expert testimony. Rather, "[t]rial judges have broad 

discretion to make . . . rulings conducive to the conduct of a 

fair and orderly trial" (quotations omitted). Bolton v. 

Massachusetts Bay Transp. Auth., 32 Mass. App. Ct. 654, 657 

(1992). The plaintiff had multiple opportunities to present 

expert testimony, both in his case in chief and at the end of 

the defendants' case, but his expert witness failed to appear

for trial. In fact, the trial had been continued for one week 

to accommodate the witness' schedule. The judge was not 

required to keep the jury for an undetermined time before the 

plaintiff's expert witness arrived. See id.

8. Other issues. The plaintiff claims error in the denial 

of his request to conduct an experiment in the courtroom, denial 

6 Additionally, the plaintiff failed to explain how the denial of 

his motion for a directed verdict on the issue of liability 

prejudiced him where the jury found the defendants negligent,

thereby rendering the motion moot.
9

of his motion for additur or a new trial, and denial of his 

request to poll the jury. Because he failed to cite to any 

authority on these issues, the arguments do not rise to the 

level of appellate argument, and therefore we need not address 

them. See Cabot v. Cabot, 55 Mass. App. Ct. 756, 768 (2002); 

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

(2019).7

Judgment affirmed.

Order denying motion for 

additur and/or 

reconsideration or in the 

alternative for new trial 

affirmed.

By the Court (Blake, 

Englander & Walsh, JJ.8),

Clerk

Entered: March 22, 2023.

7 To the extent that the plaintiff raised arguments not discussed 

herein, we have not overlooked them but conclude that they do 

not merit discussion. See Commonwealth v. Domanski, 332 Mass. 

66, 78 (1954).

8 The panelists are listed in order of seniority.