Trial News

In a change to state common law, the Massachusetts Supreme Judicial Court has ruled that declarants in civil cases who credibly testify to a “lack of memory about the subject matter in question” shall be considered “unavailable,” meaning that several exceptions to the hearsay rule may now apply to their out-of-court statements. Applying this new standard, the court found that material portions of the plaintiff’s testimony should not have been excluded and remanded the case for a new trial. (Hedberg v. Wakamatsu, 2019 WL 3023528 (Mass. July 11, 2019)).

In 2012, Leslie Hedberg had a vaginal hysterectomy. Immediately after the surgery, she began suffering pain in her left leg and foot, which was later diagnosed as the “likely result of injury to her sciatic nerve ‘either by stretching . . . or possibly due to surgical stitching.’” Hedberg sued her surgeon and submitted an affidavit detailing a conversation she had with Davis Stephen, a medical student who assisted during her surgery. Stephen allegedly met with Hedberg the day after her surgery to apologize for her pain and to say that “he was holding retractors and may have been leaning against [her] leg.” When deposed in 2017, however, Stephen claimed not to remember the surgery or any discussion with Hedberg about her leg.

At trial, the judge granted the defense’s motion to exclude Hedberg’s testimony about her conversation with Stephen as hearsay. The judge denied the plaintiff’s motion for reconsideration, and the jury found in favor of the defendant. Hedberg appealed, and the state high court transferred the case from the appeals court on its own initiative.

The Massachusetts Supreme Judicial Court ruled that—in line with the Federal Rules of Evidence and rules in the “overwhelming majority" of other states—Massachusetts would now recognize that a witness’s lack of memory, when deemed credible by a judge, would render that witness “unavailable.” Applying this new standard, the court ruled that Stephen’s statements now fell under a hearsay exception because they were statements against interest made by an unavailable witness.

A statement is against interest if made in “such a way ‘that a reasonable person in [the witness’s] position would not have made the statement unless he believed it to be true.’” Pecuniary and employment interests are considered under this analysis. “In this instance,” the court wrote, Stephen’s “admission to having mistakenly leaned on a patient’s leg during a surgery in such a manner that may have left her with a permanent injury is against his pecuniary interest, as it reflects negatively on his ability and judgment as a physician.” Because Stephen’s statements “go directly to the cause of [Hedberg’s] injuries” and should have been heard by the jury, the court vacated the defense verdict and remanded for a new trial.

Boston attorney Richard Paterniti, who represents the plaintiff, said “in terms of civil suits in Massachusetts moving forward, [the decision] certainly makes it fairer. When a statement is against a witness’s interest, claiming a lack of memory shouldn’t be enough to prevent it from coming in, and the court recognized that.”

Jeffrey White, senior associate general counsel for AAJ, which filed an amicus brief in support of the plaintiff, praised the decision. “We’re pleased that the Massachusetts Supreme Judicial Court has removed a difficult obstacle in reaching the truth in some medical negligence litigation, as well as other kinds of cases that depend on the testimony of first-hand witnesses. The court’s decision brings the Massachusetts hearsay rule in line with the federal rule on this point.”