Deborah Kingston v. Burlington Veterinary Clinic, Inc. et al, Mass. App. (2021) (Issues not raised at trial)

Officially released on March 25, 2021

Summary: Objections, issues, or claims — however meritorious – that have not been raised at the trial level are deemed generally to have been waived on appeal.

The Plaintiff was injured when she slipped and fell in a parking lot outside of the Defendant’s veterinary clinic. After a trial, the jury found that the Defendant was not negligent. Plaintiff appealed arguing that the trial judge abused his discretion in denying her motion to continue the trial and in excluding evidence from her proposed expert that she argued would have shown spoliation of evidence.

During discovery, the Defendant produced three photographs that appeared to show that the area of the Plaintiff’s fall was free of ice at 5:06pm on the date of the fall.

Since the photographs appeared to have been taken in the daylight, and since sunset was at 4:42PM on the date of the fall, the Plaintiff retained an expert in photographic analysis.

However, the Plaintiff had still not disclosed the photography expert at the final pretrial conference three weeks before the trial nor had she raised any questions about the photograph.

Three days later, the Plaintiff filed an emergency motion to continue the trial because the photography expert was not available on the scheduled trial date. The Plaintiff also attached a report from the expert questioning discrepancies in the metadata field of the photographs, specifically the date and time.

The Defendant opposed the motion for continuance arguing that there was no good cause for the late disclosure of the expert and orally moved to exclude the evidence. After a hearing, the trial court judge allowed the oral motion to exclude because of late disclosure. Although the judge did not rule explicitly on the motion to continue, the Plaintiff no longer objected to the trial date in light of the ruling on the motion to exclude.

The Plaintiff appealed arguing that the judge abused his discretion in excluding her proposed expert’s testimony, which she called “spoliation” testimony. The Plaintiff further argued that based on the expert’s views, the Defendant was perpetuating fraud on the court and would be committing perjury if she testified the photos were taken at 5:06PM.

However, the Plaintiff’s motion to continue did not claim spoliation, fraud on the court, or perjury. Additionally, the Plaintiff did not object at trial to the admission of the photographs. Instead, the Plaintiff stipulated to the admissibility of photographs and was the first party to use the photographs at trial during her direct examination of the Defendant. Finally, the Plaintiff neither requested a jury instruction on spoliation nor objected to the lack of such an instruction.

The Appellate Court held that in light of the above, the Plaintiff waived the arguments she presented on appeal by not raising them at the trial level.

The judgment was affirmed.

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