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.
2

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.
3

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 
4

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."
5

that such [instructions are] followed by the jury." HarrisLewis, 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.
6

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.
7

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.
8

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 
9

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 

10 The 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.
10

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.
11

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.