Evidence – ‘High-low’ settlement agreement – Medical malpractice

Listen to this article

Where a jury awarded a plaintiff $20 million in a medical malpractice case, the verdict should be upheld despite an argument by one of the defendants that the trial judge abused his discretion in not allowing cross-examination regarding a “high-low” settlement agreement entered into by the other two defendants, who both testified at trial.

“A jury awarded the plaintiff, Steven Luppold, $20 million in this medical malpractice case after finding the negligence of three of the defendants — Susan Hanlon, a registered nurse (RN); Charles Loucraft, a physician assistant (PA); and Carlos Flores, a nurse practitioner (NP) — caused an above the knee amputation of his left leg. On appeal, the defendant, Hanlon, claims that the trial judge abused his discretion in not allowing cross-examination regarding a ‘high-low’ settlement agreement entered into by Loucraft and Flores, who both testified at trial. Hanlon also takes issue with parts of the jury instruction given on factual causation, contending they did not comply with our decision in Doull v. Foster, 487 Mass. 1 (2021). In addition, Hanlon challenges the trial judge’s denial of a motion for judgment notwithstanding the verdict and seeks to invalidate the assessment of prejudgment interest on damages awarded to the plaintiff for future pain and suffering.

“For the reasons discussed infra, we discern no abuse of discretion in the trial judge’s decision not to allow cross-examination on the high-low settlement agreement, and we find no error in the jury instruction given on factual causation or the trial judge’s denial of the motion for judgment notwithstanding the verdict. Finally, we uphold the award of prejudgment interest. …

“On appeal, Hanlon … argues that she should have been allowed to cross-examine Loucraft regarding bias caused by the high-low agreement. That bias, she contends, is evident in Loucraft’s changed testimony, although she did not provide any specifics on how his testimony changed to the trial judge at sidebar or at any time during trial. …

“In the instant case, it appears Hanlon sought to cross-examine Loucraft regarding the high-low agreement, claiming it biased him and caused him to change his testimony. How his testimony changed, or why it would change based on a high-low agreement, is, however, not in any way evident based on the trial court record. …

“In fact, the record before us shows no such material change in Loucraft’s testimony. Loucraft consistently testified — both before he entered into the high-low agreement and later in his own case-in-chief, after he entered into the high-low agreement — that the nurses bore responsibility for communicating important information about the plaintiff to him, and that he would likely have ordered follow-up testing if Hanlon had informed him that the plaintiff’s foot was discolored and cold. …

“At no point did Hanlon’s counsel make an offer of proof, request a voir dire of the witness, identify for the court any specific instances of changed testimony, or explain how the existence of a high-low agreement would be relevant to the alleged changes. We do not even know the terms of the high-low agreement in this case or whether they were unusual in any respect. …

“In sum, Hanlon failed to demonstrate that the general rule against admission of settlement evidence should not apply in the instant case. The existence of a high-low settlement agreement of unknown terms does not alone establish bias. …

“For all these reasons, we discern no abuse of discretion by the trial judge in denying cross-examination on the high-low agreement in these circumstances. …

“We discern no abuse of discretion or error of law in the trial judge’s decision not to allow cross-examination regarding a high-low agreement, his formulation of jury instructions regarding but-for causation, and his denial of Hanlon’s postverdict motion. We also find no error in the calculation of prejudgment interest on the damages awarded in this case. Accordingly, the judgment is affirmed. The order denying the motion for judgment notwithstanding the verdict, to set aside the verdict and order a new trial, or for remittitur is also affirmed.”

Luppold v. Hanlon, et al. (Lawyers Weekly No. 10-001-25) (36 pages) (Kafker, J.) The case was tried before C. William Barrett, J., and a motion for judgment notwithstanding the verdict, to set aside the verdict and order a new trial or for remittitur was heard by him. Myles W. McDonough (Christopher M. Reilly also present) for Susan Hanlon; Adam R. Satin (Robert M. Higgins & Peter A. Ghattas also 2 present) for the plaintiff (Docket No. SJC-13577) (Jan. 3, 2025).

Click here to read the full text of the opinion.