Denial of attorney voir dire on ‘signaling’ liability upheld

A Middlesex Superior Court judge didn’t abuse his discretion when he refused to allow plaintiff’s counsel in a motor vehicle accident case to question jurors on whether they held biases with respect to holding third parties liable for “waving or signaling” vehicles into the path of oncoming traffic, a panel of the Appeals Court recently decided.

The unpublished decision in Ciampa v. Durham involved the 2019 collision between a motorcycle operated by plaintiff Christopher Ciampa and a Toyota Tacoma pickup truck driven by defendant Briana Durham.

According to evidence adduced at trial, the crash occurred as Durham attempted to make a left-hand turn onto a one-way street in Medford after exiting a parking garage.

Ciampa, a military veteran, had to undergo a below-the-knee amputation of his left leg as a result of his injuries.

In addition to suing Durham, Ciampa filed suit against truck driver Jesus Landaverde and his employer, Sysco Corp./Sysco Boston, LLC.

Police investigating the scene reported that Durham told them she never saw Ciampa’s motorcycle. Police concluded that Durham’s view to the right was obstructed by a group of four signposts and a street light post.

Landaverde had slowed his truck to a stop in the middle of the street at a pedestrian crosswalk. Durham told police that before making her turn, she saw Landaverde motion to her, which Durham took to mean that the truck driver was allowing her to pass in front of him.

Ciampa sued Durham, Landaverde and Sysco for negligence in 2019.

In suing Landaverde and his employer, the plaintiff alleged the truck driver “negligently gestured” for co-defendant Durham to pull out of the parking garage and that Sysco was liable under the theory of respondeat superior.

Trial was held in May 2024. During voir dire, the plaintiff’s lawyer attempted to ask a question about “responsibility” for “waving or signaling” to another driver.

Judge Christopher K. Barry-Smith interrupted, expressing concerns that counsel’s question was too “close to the case” and shouldn’t be allowed.

The plaintiff’s lawyer tried to rephrase the question, but Barry-Smith decided in the end not to permit the line of inquiry, stating it was “so fact-intensive” and could lead to bias.

Following a sidebar, the judge told the jury he was “trying to strike a balance … . We’re just determining if you can be fair and impartial jurors, and it’s not an opportunity to get into the facts of the case. … I don’t know what the truck driver’s actions were. I wasn’t there. None of us were. I’m going to wait until you hear the evidence before you’re asked any questions about what it means, whether liability can attach, and that type of thing.”

After hearing the evidence, the jury found Durham was negligent and that her negligence was the cause of the plaintiff’s injuries. It found no negligence on the part of Landaverde.

The jury awarded the plaintiff $12.82 million in damages.

The plaintiff appealed with respect to his unsuccessful claims against the truck driver and his employer. First, the plaintiff argued that the trial judge erred in limiting the voir dire conducted by his attorney.

Adopted in 2017, Superior Court Rule 6(3)(c) provides that, during attorney-conducted voir dire, the trial judge shall “at a minimum” allow reasonable follow-up questions concerning juror responses to the judge’s questions or written questionnaires.

The rule further provides that “the trial judge should generally approve a reasonable number of questions that “may reveal preconceptions or biases relating to the identity of the parties or the nature of the claims or issues expected to arise in the case.”

The Appeals Court panel, comprised of Judges Gregory I. Massing, Kathryn E. Hand and Rachel E. Hershfang, concluded that the “trial judge’s nuanced assessment of the proposed voir dire questions was consistent with our law,” finding instructive the 2002 Appeals Court decision Woods v. O’Neil.

“[T]he teaching of Woods is that the jury is responsible for interpreting the hand signal and determining its legal relevance,” the panel wrote. “The judge assiduously preserved that role here.”

The panel went on to reject the plaintiff’s contention that his motion for a new trial should have been allowed because the jury’s verdict absolving Landaverde and his employer was against the weight of the evidence.

“The jury heard (among other countervailing evidence) that Durham looked to her right before pulling out, but did not see the plaintiff; that she understood that, ‘as a driver,’ it was her ‘responsibility[] to make sure [the] lane is safe’ before entering it; that the responding police officer concluded Landaverde ‘wasn’t involved in the crash’; and that Landaverde was not cited or charged after the accident,” the panel wrote. “‘It is the job of the jury, not the judge, to weigh conflicting evidence and to draw reasonable inferences.’”

Defendants Landaverde and Sysco Corp. are represented by Mark B. Lavoie of McDonough, Hacking & Lavoie in Salem. Lavoie says the panel’s decision aligned with the rule on attorney-conducted voir dire.

“The judge is given broad discretion under Rule 6 to limit the scope of voir dire and whether or not it happens,” he says.

Plaintiff’s counsel, Boston attorney Garrett D. Lee of Morgan & Morgan, did not respond to a request for comment.

Salem attorney Thomas R. Murphy filed an amicus letter in the appeal of Ciampa on behalf of the Massachusetts Academy of Trial Attorneys. Murphy argued in support of the plaintiff’s position for a broad reading of the rule on attorney-conducted voir dire.

“The inability to inquire into the core issues renders counsel blind to the future jurors’ views, and that might well adversely affect the verdict,” Murphy wrote.

In an interview with Lawyers Weekly, Murphy emphasizes the language of the rule governing attorney-conducted voir dire.

“We read Rule 6(3)(c) to allow attorneys to ask questions that may reveal perceptions of bias relating to the nature of the claim,” he says.

Yet Murphy acknowledges that Rule 6(3)(e) provides an important caveat relied on by the panel in reaching its decision. Under the rule, counsel may not ask questions “framed in terms of how the juror would decide this case …, including hypotheticals that are close/specific to the facts of this case … .”

“That’s the rub,” Murphy says. “The [Appeals Court] agreed that the [trial] judge was right to say that the way [plaintiff counsel’s] question was framed was too close or specific to the facts of the case.”