author: SACKS, J.

text:
    COMMONWEALTH v. Takii RASPBERRY.
    No. 16-P-1636
    Appeals Court of Massachusetts, Suffolk..
    Argued April 12, 2018 Decided July 27, 2018
    Timothy St. Lawrence for the defendant.
    Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Sacks, & Singh, JJ.
   SACKS, J.

Before us is the defendant's interlocutory appeal from the denial of her motions to suppress evidence obtained by police through (1) warrantless real-time tracking of the defendant's whereabouts using cell site location information (CSLI) and (2) a warrantless search of her motor vehicle, leading to the discovery of a loaded firearm and a stun gun. We affirm.

Background. We recite the relevant facts as found by the motion judge, supplemented where necessary by uncontroverted police testimony, which the judge expressly credited in full. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008). None of the judge's subsidiary findings is challenged on appeal.

In April, 2015, as part of a joint investigation with Federal authorities, the Boston police were conducting a wiretap of the telephone line of one Mike Coke pursuant to a Federal court order. At approximately 4:30 P.M. on April 14, 2015, an officer in the "wire room" was monitoring a call from Coke to an unidentified woman, and he heard her say: "I'm about to go shoot up this nigga right now, I'm going to get the fucking gun, I'm sick of this bitch ass nigga yo. He fucking took my fucking money and don't want to give it the fuck back. I'm going to his, I'm going right there, right now. Right fucking now, by my fucking self ...." The judge, who listened to a recording of the call, found that she sounded "angry, upset, and emotional." The wire room officer found the call "alarming" in that the woman on the call "intended to use a firearm to shoot someone." He checked her telephone number in various databases and identified her as the defendant.

The police then knew that the defendant was referring to Alvin Dorsey, with whom she had been in "some type of romantic relationship." The judge found that "the police were reasonable in having grave concerns about the defendant imminently causing serious bodily harm."

Within fifteen minutes of hearing the defendant's threat, the officer called AT & T to initiate an "exigent request." He stated that the Boston police had reliable information that a person using an AT & T cellular telephone (cell phone) might have a gun and might be about to harm another person. He provided the defendant's cell phone number and asked AT & T to perform "emergency pings" and give the police real-time CSLI about the approximate location of the defendant's cell phone. AT & T agreed to assist, and it began sending the results of the pings to a designated Boston police electronic mail (e-mail) address at approximately fifteen-minute intervals. The officer mapped the location of each ping result as it was received and shared this information with officers in the field attempting to find the defendant.

The first result, received at 5:06 P.M. , showed the cell phone within a 1,880 meter radius of a cell site in Braintree. Subsequent results showed the cell phone to be moving toward Boston, leading police to believe that the defendant was on her way to locate Dorsey. Specifically, a 5:37 P.M. result showed the cell phone somewhere in the Dorchester section of Boston, and a 5:53 P.M. result showed the cell phone in the Roxbury section of Boston, within a 652-meter radius of a cell site atop a food market. In the meantime, police had learned that Dorsey "may have been" with a girl friend who lived at a particular address in a housing project near that market. Results received at 6:25 P.M. and 6:41 P.M. showed the cell phone in an area with a 487-meter radius that included that housing project.

At 6:46 P.M. , the officer in the wire room, still monitoring Coke's phone calls, listened to a second conversation between Coke and the defendant. In this call, the defendant said, "I'm sitting right in front of her house," which the police knew referred to the house of Dorsey's girl friend. The defendant further stated that she was going to "shoot him and his bitch in the face"; that she knew Dorsey was in the apartment because he had been texting her; that she was waiting for him; that if he did not come out, she would be back at 7:00 A.M. in a motor vehicle that he would not recognize; and that she would jump out and "pistol whip" him. She added that if Dorsey sent anyone to attack her, it would be a "firefight," which the detective understood to mean a "shootout."

At this time, a Boston police sergeant, who had been kept informed of the defendant's threats and suspected location, was in a motor vehicle near the market and the housing project. At approximately 6:50 P.M. , the sergeant turned onto the street where Dorsey's girl friend lived and observed a woman sitting in a motor vehicle parked about 100 yards away from, and with a clear line of sight to, the girl friend's residence. The woman was talking on a cell phone. The sergeant knew that the defendant was on the phone with Coke at the time.

The sergeant called in the motor vehicle's license plate number and learned that the vehicle was registered to the defendant. The sergeant then contacted a Boston police detective who, along with two other officers, was patrolling the area in an unmarked cruiser. The sergeant described the defendant, her vehicle, and its plate number and location; warned the detective that the defendant likely had a firearm and was threatening to shoot someone; and asked the detective to stop the defendant's vehicle.

The three officers stopped and approached the defendant's motor vehicle on foot. The detective then asked her for her license and registration. When she said she did not have a license, she was ordered out of the vehicle and arrested for operating without a license. One officer led her to the rear of the vehicle, while the others searched the vehicle. They found a stun gun in the defendant's purse in the passenger compartment and a loaded gun in the trunk.

The defendant filed separate motions to suppress the fruits of (1) the warrantless CSLI search of her location and (2) the warrantless search of her motor vehicle. The judge ruled that the CSLI search was justified under the emergency aid exception to the warrant requirement, because the police had a "good faith, reasonable belief that there was a serious and imminent threat to human life." The judge further ruled that the search of the vehicle was justified under the automobile exception, where the police had probable cause to believe that the vehicle contained a loaded firearm that the defendant intended to use.

Discussion. In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings unless clearly erroneous, see Commonwealth v. White, 374 Mass. 132, 137, 371 N.E.2d 777 (1977), aff'd, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978), and make an "independent determination on the correctness of the judge's 'application of constitutional principles to the facts as found.' " Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), quoting from Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). 1. CSLI search. The parties and the judge proceeded on the assumption that the police use of the CSLI voluntarily provided by AT & T, in order to track the defendant's location in real time for two hours, was a search, subject to the warrant requirement of art. 14 of the Massachusetts Declaration of Rights. Compare Commonwealth v. Augustine, 467 Mass. 230, 255, 4 N.E.3d 846 (2014), S.C., 472 Mass. 448, 35 N.E.3d 688 (2015) ("[T]he government-compelled production of the defendant's [historical] CSLI records [covering two weeks] by Sprint constituted a search in the constitutional sense to which the warrant requirement of art. 14 applied"); Commonwealth v. Fredericq, 93 Mass. App. Ct. 19, 27-28, 97 N.E.3d 367 (2018) (government-compelled creation and production of real-time CSLI for more than six days was subject to art. 14 warrant requirement). Without deciding the question, we proceed on the same assumption. And, as neither the Supreme Judicial Court nor this court has previously determined whether an emergency might justify a warrantless CSLI search, we begin by reviewing emergency search cases from other contexts.

a. The emergency aid exception. In the context of a search of a home, where constitutional protection against unreasonable searches is at its zenith, the courts have recognized an "emergency aid" exception to the warrant and probable cause requirements of the Federal and State constitutions. See Commonwealth v. Snell, 428 Mass. 766, 774-775, 776 n.7, 705 N.E.2d 236, cert. denied, 527 U.S. 1010, 119 S.Ct. 2351, 144 L.Ed.2d 247 (1999) ; Commonwealth v. Duncan, 467 Mass. 746, 749-750, 7 N.E.3d 469, cert. denied, --- U.S. ----, 135 S.Ct. 224, 190 L.Ed.2d 170 (2014) ; Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 165, 982 N.E.2d 52 (2013). "This exception 'permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.' " Duncan, 467 Mass. at 749-750, 7 N.E.3d 469, quoting from Commonwealth v. Peters, 453 Mass. 818, 819, 905 N.E.2d 1111 (2009). "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Snell, 428 Mass. at 774, 705 N.E.2d 236, quoting from Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219, 548 N.E.2d 889 (1990). See Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). "The reason is plain: 'People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process.' " Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 201, 880 N.E.2d 814 (2008), quoting from Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963).

In such cases, probable cause is not required, "because the purpose of police entry is not to investigate criminal activity.... Instead, a warrantless entry 'must meet two strict requirements. First, there must be objectively reasonable grounds to believe that an emergency exists.... Second, the conduct of the police following the entry must be reasonable under the circumstances ....' " Duncan, 467 Mass. at 750, 7 N.E.3d 469, quoting from Peters, 453 Mass. at 823, 905 N.E.2d 1111. The burden of showing reasonableness is on the Commonwealth. Cantelli, 83 Mass. App. Ct. at 167, 982 N.E.2d 52.

"The injury sought to be avoided must be immediate and serious, and the mere existence of a potentially harmful circumstance is not sufficient." Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 841-842, 859 N.E.2d 433 (2006). But neither is "ironclad proof of 'a likely serious, life-threatening' injury" required. Commonwealth v. Entwistle, 463 Mass. 205, 214, 973 N.E.2d 115 (2012), cert. denied, 568 U.S. 1129, 133 S.Ct. 945, 184 L.Ed.2d 736 (2013), quoting from Michigan v. Fisher, 558 U.S. 45, 49, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009). "It suffices that there are objectively reasonable grounds to believe that emergency aid might be needed." Entwistle, supra.

"[W]hether an [emergency] existed, and whether the response of the police was reasonable and therefore lawful, are matters to be evaluated in relation to the scene as it could appear to the officers at the time, not as it may seem to a scholar after the event with the benefit of leisured retrospective analysis." Commonwealth v. Young, 382 Mass. 448, 456, 416 N.E.2d 944 (1981). What matters are the objective circumstances known to police officers; their subjective motives are irrelevant. Entwistle, 463 Mass. at 214, 973 N.E.2d 115.

Thus, in Snell, the court upheld a warrantless entry into the defendant's house because "[t]here existed objectively reasonable grounds to believe that [the defendant's wife] might be injured or dead inside," presenting a domestic violence situation, "which often calls for rapid police response designed to prevent further injury to a victim, to see whether a threat against a victim has been carried out, or to ascertain whether some other grave misfortune has befallen a victim." 428 Mass. at 775, 705 N.E.2d 236. And in Cantelli, we upheld a warrantless police entry into the defendant's apartment to allow a technician to turn off the gas supply to the defendant's stove, where his prior erratic conduct in allowing "explosive levels" of gas to fill his apartment, and in refusing entry to the technician, presented "an emergency of sufficient proportions ... to render a warrantless entry reasonable." 83 Mass. App. Ct. at 165-166, 982 N.E.2d 52.

The emergency aid exception also applies to searches within lawfully-entered homes. In Commonwealth v. Samuel, 80 Mass. App. Ct. 560, 954 N.E.2d 557 (2011), the police, after entering an apartment with a resident's consent, searched under a pillow where they reasonably believed the defendant had hidden a loaded firearm. The defendant had earlier told others that he would use the firearm in a killing for hire. We upheld the search under the emergency aid exception. Id. at 562-564, 954 N.E.2d 557.

Other decisions have applied the exception to uphold warrantless searches of places other than homes, in order to find and assist a victim of serious physical harm or to prevent such harm from occurring. See Commonwealth v. Marchione, 384 Mass. 8, 11-12, 422 N.E.2d 1362 (1981) (search of commercial premises where there was reason to believe explosive liquid was stored in partially-open containers near homemade incendiary device); Commonwealth v. Ortiz, 435 Mass. 569, 572-573, 760 N.E.2d 282 (2002) (search of fruit store to find missing person who police reasonably believed was inside and injured or dead); Commonwealth v. DiMarzio, 52 Mass. App. Ct. 746, 747-750, 756 N.E.2d 9 (2001), S.C., 436 Mass. 1012, 767 N.E.2d 1059 (2002) (police entry into warehouse office to find angry, intoxicated man who had just threatened to come to couple's house with shotgun); Commonwealth v. McCarthy, 71 Mass. App. Ct. 591, 594-595, 884 N.E.2d 991 (2008) (search of handbag of woman who collapsed in public of apparent drug overdose, to find type of drug she might have ingested in order to assist medical personnel in treating her).

We mention two other cases that illustrate the reach of the emergency aid exception. In Duncan, the court extended the exception to protect nonhuman animal life. 467 Mass. at 753, 7 N.E.3d 469. And in Commonwealth v. Hurd, 29 Mass. App. Ct. 929, 557 N.E.2d 72 (1990), we applied the exception to uphold police officers' stop of a motor vehicle with New Hampshire license plates approaching the entrance to a highway, based on an anonymous tip that the driver was intoxicated and had three small children with him. "The police, having reasonable grounds to believe that an exigency existed, acted appropriately in stopping the automobile to see if, in fact, the driver was intoxicated. Such action was reasonably necessary to protect the children and the public from 'unnecessary exposure to risk of injury.' " Id. at 930-931, 557 N.E.2d 72, quoting from Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301, 306, 502 N.E.2d 142 (1986).

b. Application of emergency aid exception. The defendant does not contend that the emergency aid exception could never justify warrantless real-time CSLI tracking; rather, she argues only that the exception's requirements were not met here. Therefore, assuming without deciding that this was a search, we will also assume without deciding that it would have been permissible if the exception's requirements were met. Accordingly, we examine whether the Commonwealth has met its "burden of showing that authorities had a reasonable ground to believe that an emergency existed and that the actions of the police were reasonable in the circumstances." Commonwealth v. Knowles, 451 Mass. 91, 96, 883 N.E.2d 941 (2008).

We have no difficulty concluding that these standards were met here. The police overheard a phone call in which an angry, upset individual said she was "going to get the ... gun" and was "about to go shoot up [someone] right now .... I'm going to his, I'm going right there, right now." The police identified the person making the threat as the defendant and thus inferred that she was likely talking about shooting Dorsey. The judge, after listening to a recording of the call, found that "the police were reasonable in having grave concerns about the defendant imminently causing serious bodily harm," and we see no basis for rejecting that finding. See DiMarzio, 52 Mass. App. Ct. at 747-751, 756 N.E.2d 9 (emergency aid exception applied where police reasonably believed that angry, intoxicated person had just threatened to come to couple's house with shotgun); Samuel, 80 Mass. App. Ct. at 563-564, 954 N.E.2d 557 (exception applied where police reasonably believed that person had concealed loaded gun under pillow and announced that he had been hired to kill someone). Although the defendant here argues that the police had no basis other than her own statement for believing she had access to a firearm, such a statement was found sufficient in DiMarzio, 52 Mass. App. Ct. at 748-749, 756 N.E.2d 9, and it was sufficient here.

What police did not know here, at the time of the call, was the whereabouts of the defendant. In the circumstances, it was objectively reasonable for the police to request real-time CSLI, in order to determine the defendant's current location and the direction in which she was moving, and thus to find and intercept her before she could shoot Dorsey.

The defendant points out that when AT & T, in response to the "exigency request," sent the police her subscriber information as well her real-time CSLI information, the police learned her home address in Braintree. She argues that at that point, the police could have asked their counterparts in Braintree to look for her at her home, instead of tracking her using CSLI. But this ignores, among other factors, that the police had no information suggesting that she was actually at her home or would still be there when police arrived. Indeed, the police had just heard her say that she was "going to get the ... gun" and "going to his ... going right there, right now" to shoot the intended victim, thus indicating that she was leaving wherever she was and going to wherever she believed Dorsey was. The defendant's second-guessing approach contravenes the principle that the reasonableness of the police response is "to be evaluated in relation to the scene as it could appear to the officers at the time ...." Young, 382 Mass. at 456, 416 N.E.2d 944.

The same is true of the defendant's argument that the police, once they formed a belief that her target was Dorsey and that he might be at his girl friend's address, could simply have gone to that address instead of tracking her using CSLI. Even assuming (although the record does not show it) that the police formed this belief about Dorsey's whereabouts before they obtained any CSLI, their belief was merely that Dorsey "may have been" at that address. It was reasonable for the police to believe that a more direct and sure way of preventing the defendant from shooting Dorsey was to find and intercept the defendant herself. See DiMarzio, 52 Mass. App. Ct. at 748, 756 N.E.2d 9 (where defendant left couple's house but threatened to return with a shotgun, "[i]t was reasonable for the police to go looking for the defendant to gather further information").

The defendant makes no other argument that the police lacked reasonable ground to believe that an emergency existed or that their actions were unreasonable in the circumstances. The police tracked her location using CSLI for a brief period, apparently not exceeding two hours, and intercepted her immediately after hearing her say, in a second phone call, that she was "sitting right in front of [the girl friend's] house," and was going to "shoot him and his bitch in the face." We conclude that the police use of the CSLI voluntarily provided by AT & T, assuming without deciding that it was a search that could in principle be justified by the emergency aid exception, was justified on these facts.

2. Search of motor vehicle. The judge upheld the search of the defendant's motor vehicle based on the automobile exception to the warrant requirement. That exception "applies to situations where the police have probable cause to believe that a motor vehicle parked in a public place and apparently capable of being moved contains contraband or evidence of a crime." Commonwealth v. Dame, 473 Mass. 524, 536, 45 N.E.3d 69 (quotation omitted), cert. denied, --- U.S. ----, 137 S.Ct. 132, 196 L.Ed.2d 103 (2016). The exception extends to a vehicle's trunk, if the item(s) sought may reasonably be thought to be there. See Commonwealth v. Garden, 451 Mass. 43, 51-52, 883 N.E.2d 905 (2008) ; Commonwealth v. Hernandez, 473 Mass. 379, 383-384, 42 N.E.3d 1064 (2015). The judge here concluded that police had probable cause to believe that "the defendant's car contained a loaded firearm and that she intended to use it."

On appeal the defendant argues that the automobile exception was inapplicable only because the police lacked probable cause to search the trunk for a gun. She contends that, although her statements to Coke gave reason to "suspect that she was carrying a gun, ... once the stun gun was located in [her] purse, the force of those statements as evidence that she had some other type of gun was greatly diluted" and fell below the level of probable cause.

Even assuming that the stun gun was found first (an issue on which the evidence was unclear and the judge made no finding), we disagree. The defendant stated in the first call that she was going to "get the fucking gun" and "shoot up" the intended victim. She stated in the second call, from outside his girl friend's residence, that she was going to "shoot him and his bitch in the face," that she was prepared to "pistol whip" him, and that if he sent anyone to attack her, it would be a "firefight." These statements furnished ample objective grounds -- in no way weakened by the discovery of a stun gun in her handbag -- to believe that the defendant possessed and was prepared to use a loaded firearm, and that it was somewhere in the motor vehicle.

Order denying motions to suppress affirmed.

      A single justice of the Supreme Judicial Court allowed the defendant's motion to pursue an interlocutory appeal and ordered it to be heard in this court.

      The defendant is charged with unlicensed operation of a motor vehicle, G. L. c. 90, § 10 ; carrying a firearm without a license, G. L. c. 269, § 10(a ) ; carrying a dangerous weapon (a stun gun), G. L. c. 260, § 10(b ) ; carrying a loaded firearm without a license, G. L. c. 269, § 10(n ) ; and possessing ammunition without a firearm identification card, G. L. c. 269, § 10(h )(1). As to the stun gun charge, see Ramirez v. Commonwealth, 479 Mass. 331, 94 N.E.3d 809 (2018) (absolute prohibition of civilian possession of stun guns in G. L. c. 140, § 131J, is unconstitutional).

      The defendant has not challenged any aspect of the wiretap.

      See Commonwealth v. Fredericq, 93 Mass. App. Ct. 19, 27-28, 97 N.E.3d 367 (2018) (describing real-time CSLI). See also Commonwealth v. Long, 476 Mass. 526, 530 n.3, 69 N.E.3d 981 (2017) (describing historical CSLI).

      After this case was argued, the United States Supreme Court decided that "accessing seven days of [historical] CSLI constitutes a ... search" under the Fourth Amendment to the United States Constitution but declined to determine whether accessing such CSLI for a more limited period might not be a search. Carpenter v. United States, --- U.S. ----, 138 S.Ct. 2206, 2217 n.3, 201 L.Ed.2d 507 (2018).

      The judge made two additional rulings, neither of which the defendant challenges on appeal, and on which we therefore express no opinion: (1) that AT & T's provision of the CSLI was authorized by language in the Federal Stored Communications Act, 18 U.S.C. § 2702(c)(4) (2012), addressing "an emergency involving danger of death or serious physical injury"; and (2) that, because of the emergency circumstances, the police did not violate G. L. c. 271, § 17B, as amended by St. 2008, c. 205, § 3, in obtaining the CSLI without an administrative subpoena. See Commonwealth v. Chamberlin, 473 Mass. 653, 663, 45 N.E.3d 900 (2016) (reserving question whether § 17B, as amended, "precludes the government from asking a service provider to turn over customer records voluntarily").

      See Collins v. Virginia, --- U.S. ----, 138 S.Ct. 1663, 1670, 201 L.Ed.2d 9 (2018) ; Selectmen of Framingham v. Municipal Ct. of Boston, 373 Mass. 783, 785, 369 N.E.2d 1145 (1977) ; Commonwealth v. Swanson, 56 Mass. App. Ct. 459, 462, 778 N.E.2d 958 (2002).

      The emergency aid exception, which requires no probable cause, is thus distinct from the "exigent circumstances" exception, which permits a warrantless search where probable cause exists, but circumstances such as the imminent loss of evidence make obtaining a warrant impracticable. See Commonwealth v. Washington, 449 Mass. 476, 480, 869 N.E.2d 605 (2007) ; Duncan, 467 Mass. at 750, 7 N.E.3d 469.

      As Duncan indicates, the emergency aid exception may be based on the need to find and assist a person who has already been harmed, the need to prevent future harm, or both. In the context of prevention of future harm, the label "pure emergency" has sometimes been applied. See Duncan, 467 Mass. at 749, 7 N.E.3d 469 ; Cantelli, 83 Mass. App. Ct. at 158, 982 N.E.2d 52 ; Cypher, Criminal Practice & Procedure § 5.156 (4th ed. 2014); Grasso & McEvoy, Suppression Matters Under Massachusetts Law §§ 4-2[f][1], 14-1[c][3][vi] (2017 ed.).

      Several courts have concluded that the emergency aid exception justified real-time CSLI tracking in particular circumstances. See United States v. Gilliam, No. 11 Crim. 1083, 2012 WL 4044632 (S.D.N.Y. Sept. 12, 2012) ; United States v. Takai, 943 F.Supp.2d 1315, 1323 (D. Utah 2013) ; United States v. Caraballo, 963 F.Supp.2d 341, 363-364 (D. Vt. 2013), aff'd, 831 F.3d 95 (2d Cir. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 654, 196 L.Ed.2d 546 (2017). See also Carpenter v. United States, 138 S.Ct. at 2223 (although government generally needs warrant to access CSLI, there may be exceptions for exigencies such as "the need to ... protect individuals who are threatened with imminent harm").

      The judge did not address whether the search was valid as an inventory search incident to an impoundment of the vehicle. We therefore need not address the defendant's argument on appeal that the police lacked a valid basis for impoundment. See Commonwealth v. Gouse, 461 Mass. 787, 792 n.7, 965 N.E.2d 774 (2012).

      Because the defendant does not contend otherwise, we assume that the search was lawful if, as the judge concluded, there was probable cause to believe that the defendant intended to use the gun to shoot someone, i.e., that she was about to commit a crime. The United States Supreme Court "repeatedly has explained that 'probable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). The defendant does not argue that art. 14 imposes any stricter standard in this regard. See Commonwealth v. Fulgiam, 477 Mass. 20, 33, 73 N.E.3d 798, cert. denied, --- U.S. ----, 138 S.Ct. 330, 199 L.Ed.2d 221 (2017).


source: Caselaw Access Project

author: MILKEY, J.

license: Public Domain

text:
    John R. LOISELLE, trustee, & others v. Brian S. HICKEY & others.
    No. 17-P-1232
    Appeals Court of Massachusetts, Suffolk..
    Argued May 3, 2018 Decided July 27, 2018
    Justin Perrotta for John R. Loiselle & others.
    Roland W. Young, pro se.
    Sarah A. Turano-Flores, Hyannis, for James J. Lepore & others.
    Brian M. Hurley, Boston (Jeffrey B. Loeb also present, Boston) for Brian S. Hickey & others.
    Present: Milkey, Hanlon, & Singh, JJ.

      Of the Loiselle Family Realty Trust.

      Jane W. Loiselle, as trustee of the Loiselle Family Realty Trust; Stephen Campe; Karen Campe; Francis Carrick; Jeanne Carrick; Philip J. Ciaramicoli; Gayle A. Ciaramicoli; Donald F. Daley, as trustee of the Donald F. Daley Revocable Living Trust; Thomas Daley; Ursula Daley; Stephen Delvecchio; Marcia Delvecchio; Virginia L. Devine, as trustee of the Hippogriffe Road Realty Trust; Joseph A. Donato; Diane Donato; Pamela J. Driscoll; Robert A Furman and Carole R. Bohn, as trustees of the Bohn-Furman Realty Trust; Richard A. Giberti; Elaine M. Giberti; John Gray; Sarah Gray; John A. Hennessey; Susan M. Hennessey; John F. Howard; Judith S. Howard; Martin J. Jessel; Karen LaFauci; Lisa M. Swalec, as trustee of the Leroux Family Trust; Joseph A. Lima and Sue E. Lima, as trustees of the Patriots Way Realty Trust; LoVerme Bayview Limited Partnership; James G. Maguire, as personal representative of the estate of Mary H. Maguire; Paul Maher; Pamela Maher; Linley Mahon, as personal representative of the estate of Geoffrey L. Mahon; Arthur Maressa; Maria Marinescu; Sorin Marinescu; Gary McWilliams; James T. Moshier; Thomas M. O'Hear; Kelly O'Rourke; Richard L. O'Shea; John Palermo; Kara Palermo; Kenneth Pecore; Mark S. Pelletier; Patricia M. Pelletier; Lewis Piantedosi; Robert M. Pierce; Joseph J. Rahal; Mary G. Rahal; Russel A. Robbins; Diane M. Robbins; Joseph G. Russo; WT Dennis LLC; Christopher P. Tosti, as trustee of the BPR Irrevocable Trust, sole beneficiary of the Tosti Realty Trust; Christopher P. Tosti; Christine Tosti; Andrew Tvirbutas; Catherine Tvirbutas; John J. Walker; Susan L. Walker; Michelle T. Walker; Kristin M. Walker; Elizabeth A. Walker; and Roland W. Young.

      Mary P. Hickey; Lorraine M. Paglia and Robert L. Paglia, as trustees of the Hay Dennis Realty Trust; Patricia E. Howard and Jean Howard, as trustees of the Bayview Realty Trust; Shore Drive LLC; Barbara G. Wells and Robert Emerson Wells, Jr., as trustees of the Wells Nominee Trust; Mary E. Howe; Robert W. Howe, Jr.; Peter A. Schimmel; Michael Andreottola; Susan Andreottola; Dennis Conservation Trust; Paul W. Eysie; Paul V. Galvani; Linda A. Galvani; Charlene E. Keady; Joseph A. Salamone; William A. Sampson; Martha M. Sampson; Peter R. Daniels, as trustee of the Daniels Nominee Trust; Jane Daryl Springer, as trustee of the Jane Daryl Springer Residence Trust; Mark C. Thurman; Wendy C. Thurman; N. Richard Greenfield; Karen L. Greenfield; Douglas Suliman; Patricia Suliman; James J. Lepore; Carton R. Copp; Alice A. Copp; and Happiness Association LLC.

   MILKEY, J.

This is a dispute between inland and shoreland owners over rights to use a particular beach in Dennis. The sixty-nine plaintiffs (inland owners) claim the right to use the intertidal beach area that lies seaward of lots owned by the thirty-four defendants (shoreland owners). All of the lots are registered land that originally was part of a 217-acre tract adjacent to Cape Cod Bay that was subdivided over the course of the last century. On motions for summary judgment, a Land Court judge ruled in the shoreland owners' favor, concluding that they owned the contested portions of the beach (disputed flats), and that the inland owners' rights to use the disputed flats were limited to those public rights reserved by the Colonial Ordinance of 1641-1647. See Michaelson v. Silver Beach Improvement Assn., Inc., 342 Mass. 251, 253, 173 N.E.2d 273 (1961) (although land in intertidal zone generally is privately held, it is subject to certain reserved public rights, typically summarized as fishing, fowling, and navigation). The judge explained his ruling in a thoughtful and comprehensive forty-page decision. We affirm the judgment, while clarifying one ambiguity in it.

Background. As an initial matter, we note that the current case is a follow-up to Hickey v. Pathways Assn., Inc., 472 Mass. 735, 37 N.E.3d 1003 (2015) ( Hickey I ). That case was a dispute over Hickey Way, a twenty-foot wide right-of-way that runs from Shore Drive to Cape Cod Bay in Dennis. Id. at 736, 37 N.E.3d 1003. The four shoreland owners who owned the lots abutting Hickey Way brought that case seeking to establish that they held the fee interest in Hickey Way and that the inland owners had no right to use it. Id. at 737, 37 N.E.3d 1003. The Supreme Judicial Court ruled in favor of the inland owners. Specifically, the court held that the original developers had retained the fee to Hickey Way and had granted the inland owners rights to use that way. Id. at 753, 761, 37 N.E.3d 1003.

Fresh from their victory securing their rights to use Hickey Way, the inland owners brought the current case seeking to establish their right to use the disputed flats for all normal beach purposes (not just for the reserved public rights of fishing, fowling, and navigation). As the judge aptly put it, "having been adjudged to hold rights in ... Hickey Way, [the inland owners] now seek a ruling as to the scope of their rights in the area accessed by that way."

We turn next to a summary of the undisputed subsidiary facts. The original 217-acre tract was registered in 1903 to Frank B. Tobey. It subsequently was developed in stages, as depicted in various Land Court plans. The eastern portion of the Tobey tract -- depicted on the so-called "B plan" -- was developed first. Although the current litigation does not directly involve any of the B plan lots, the development of that area serves as a useful point of comparison. Along the water in that area was a long but narrow upland beach that was set aside as a separate lot (beach lot B-E). The B plan lots were developed so that there would be access ways that ran to beach lot B-E from a road that paralleled the water (with the access ways spaced every few lots). The deeds to the fourteen lots shown on the B plan that lie just to the south of beach lot B-E describe their northern boundary variously as "by the beach," by specific reference to beach lot B-E, or both.

The current litigation involves the western portion of the Tobey tract. As the court observed in Hickey I, 472 Mass. at 740, 37 N.E.3d 1003, this area was laid out "in a similar fashion to the earlier subdivision on the B [p]lan." Thus, access ways ran to Cape Cod Bay from the road that paralleled the water (again, with the ways spaced every few lots). However, unlike the eastern portion, there was not a separately reserved upland beach lot to which the access ways led. Nor did the deeds or certificates of title to the shoreland lots in the western portion describe the northern boundary of those lots as "by the beach."

Instead, each shoreland lot was described as being bounded "by the waters of Cape Cod Bay" (or similar language).

After the shoreland area of the western portion was subdivided, the inland lots in that area were developed. Although most of the deeds or certificates of title for the lots held by the inland owners reference rights in Hickey Way or the other reserved ways, none of them references any reserved beach rights. As discussed further below, there are two owners of inland lots who are not parties to this case whose deeds do reference beach rights.

Discussion. As the court did in Hickey I, we begin by examining whether the shoreland owners hold title to the disputed flats, and then proceed to examine what easement rights, if any, the inland owners were granted in that land.

1. Ownership of the disputed flats. "The Colonial Ordinance of 1641-1647 established that a person holding land adjacent to the sea shall hold title to the land out to the low water mark or 100 rods (1,650 feet), whichever is less." Pazolt v. Director of Div. of Marine Fisheries, 417 Mass. 565, 570, 631 N.E.2d 547 (1994), citing Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 635, 393 N.E.2d 356 (1979). Although title to the upland portion of shoreland property can be severed from the title to the flats, this generally must be done expressly, that is, through the use of "excluding words." Id. at 570-571, 631 N.E.2d 547, quoting from Commonwealth v. Roxbury, 9 Gray 451, 524, 75 Mass. 451 (1857). Otherwise, the owners of shoreland property are presumed to own the fee in the adjacent flats. As explained below, we agree with the judge that the inland owners have not overcome the presumption that the disputed flats are owned by the shoreland owners, whose predecessors in title acquired title to them from the original developers.

As noted, the shoreland owners' deeds and certificates of title describe their lots as bounded "by the waters of Cape Cod Bay," or equivalent language. Under the cases, such language is interpreted as conveying property to the low water mark. See Michaelson, 342 Mass. at 260-261, 173 N.E.2d 273 ("[W]ords in a deed such as 'Westerly by Wild Harbor,' or words of similar import, convey title to the low water mark"); Brown v. Kalicki, 90 Mass. App. Ct. 534, 535, 538, 62 N.E.3d 71 (2016) (language that land was bounded by "Nantucket Sound" gave title to low water mark, including with respect to any accretions). In addition, most of these deeds or certificates of title note that the property is being held subject to the public rights reserved by the Colonial Ordinance. Such references would make no sense if the land being conveyed were bounded by the mean high tide mark, with the fee to the intertidal area reserved to others. Thus, far from providing evidence helpful to the inland owners, the deeds and certificates of title to the shoreland lots support the shoreland owners' claim that they own title down to the mean low water mark.

In trying to argue that that the fee in the disputed flats nevertheless was reserved by the original developers, the inland owners seek support in the rulings that the Supreme Judicial Court made in Hickey I with respect to the fee in Hickey Way. This analogy does not aid them. In Hickey I, the court relied, in great part, on the fact that the deed and certificates of title to the relevant shoreland lots referenced Hickey Way as the side boundary to those lots and also gave the shoreland owners themselves the right to use Hickey Way for access (something that would have been unnecessary if the original developers had intended to convey title to Hickey Way). Hickey I, 472 Mass. at 748, 37 N.E.3d 1003. In the case before us, the inland owners cannot raise any similar textual arguments based on the language in the deeds or certificates of title to the shoreland lots.

Similarly, any comparisons to the development of the eastern portion of the Tobey tract also do not aid the inland owners' case. While there are some broad similarities as to how the two portions of the Tobey tract were developed, there are also some important distinctions. Most significantly, as noted, there was an upland beach in the eastern portion that the original developers carved out as a separate lot, with the lots immediately to the south of the beach lot denoted as being bounded by that beach. With respect to the western portion, the inland owners cannot point to any evidence in the deeds or certificates of title to the lots owned by the litigants -- or in the plans that document the progression of the development of the western portion -- that evince that the original developers intended to carve out a beach lot comparable to the one on the eastern side. See Labounty v. Vickers, 352 Mass. 337, 349, 225 N.E.2d 333 (1967) ("A person examining [the relevant] plan could reasonably discern that [an access] easement [to the water] had been reserved[,] ... [b]ut there is nothing on the plan to show that the beach area [on either side] of the strip was similarly reserved"). Comparisons to the development of the eastern portion of the Tobey tract therefore hurt, rather than help, the inland owners' case.

The only robust evidence that the inland owners have identified in support of their claim that the original developers might have intended to retain the fee in the disputed flats for use as a communal beach comes from the deeds to two inland lots (lots H-A2 and H-A3), whose owners are not parties to this litigation. Specifically, the deeds to those two lots -- which were the first granted by the original developers for inland lots in the western portion of the Tobey tract -- purported to convey the right to use a beach owned by the developers, referenced in one of the deeds as "the beach reserved by the grantors for use of the lot owners in this development." However, which beach was being referenced in those deeds is not at all clear. Given the lack of any other indication that the original developers at that point still owned a separate beach lot carved out on the western portion of the Tobey tract, the judge concluded that the unidentified beach referenced in the two deeds was likely beach lot B-E (the long, private demarcated upland beach created on the eastern portion of the tract). In any event, whatever beach rights were conveyed to the owners of lots H-A2 and H-A3 (an issue not resolved by the current litigation), we agree with the judge that the two deeds in question are not enough to overcome the presumption that the shoreland owners acquired the fee in the disputed flats. We turn next to the inland owners' claim that they nevertheless hold an easement to use the disputed flats for general beach purposes.

2. Alleged easements in the disputed flats. It is undisputed that the certificates of title to the shoreland lots (which include the disputed flats) make no reference to beach rights held by others (other than to those public rights reserved by the Colonial Ordinance). That fact alone presumptively negates the inland owners' claim that they own such rights. See Hickey I, 472 Mass. at 754, 37 N.E.3d 1003 ("[F]or registered land to be burdened by an easement, generally the easement must be shown on the certificate of title"). However, "there are two exceptions to th[is] general rule." Id. at 755, 37 N.E.3d 1003, citing Jackson v. Knott, 418 Mass. 704, 711, 640 N.E.2d 109 (1994). The inland owners argue that the first exception recognized by Jackson applies.

Under the first Jackson exception, even where the certificate of title does not show an easement, courts nevertheless can find registered land impressed with an easement if a review of the certificate revealed facts "which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system" that memorialized such an easement. Hickey I, at 755-756, 37 N.E.3d 1003, citing Jackson, 418 Mass. at 711, 640 N.E.2d 109.

However, even if we assumed arguendo that a reasonable purchaser of the shoreland lots somehow was put on notice that he or she should investigate further whether other documents in the registration system reflected an intent to reserve beach rights easements in the disputed flats, a review of those documents would not actually reflect such an intent. As noted, while many of the deeds or certificates of title to the inland owners' lots reference rights to use Hickey Way and the other access ways, none references a right to use the disputed flats. Compare Anderson v. De Vries, 326 Mass. 127, 129, 134, 93 N.E.2d 251 (1950), overruled on other grounds by M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 809 N.E.2d 1053 (2004) (inland owners held to have beach rights where certificates of title of both inland and shore properties referenced access easement "to the beach" and where "[t]he chief inducement for the purchase of [the inland parcels] was the right to use the beach for swimming, bathing, and sun bathing"); Houghton v. Johnson, 71 Mass. App. Ct. 825, 834-835, 887 N.E.2d 1073 (2008) (even as to nonregistered land, reservation of recorded right of way "leading to the beach," without more, held insufficient to support implied easement to use privately held beach outside of right of way).

Once again, the inland owners seek to invoke the deeds to lots H-A2 and H-A3 to support their claim that they have beach rights in the disputed flats even though the certificates of title to the shoreland lots make no reference to such rights. As already noted, however, it is far from clear that the particular beach referenced in those deeds is the one comprised of the disputed flats. In any event, as the judge aptly observed, "[e]ven if the inference could be made that [the H-A2 and H-A3 deeds] referred to the [d]isputed [f]lats, there is nothing in the record indicating that [the inland owners'] lots were intended to be benefitted by these conveyances, which represent outliers among the thousands of deeds to hundreds of lots within the Tobey [t]ract."

The inland owners are left to argue that their easements to use Hickey Way and the other access ways to reach the intertidal area necessarily indicate the original developers' intent that the inland owners be able to use the entire intertidal beach area for general beach purposes. It makes no sense, they argue, for the original developers to have created a system of access ways for the benefit of the inland owners unless such owners thereby acquired significantly greater rights than the public at large. They maintain that because members of the general public can access a public beach down the road, and additionally have the right to undertake fishing, fowling, and navigation in privately held intertidal areas, then it must follow that the original developers intended the inland owners to be able to spread out onto the entire beach area and use it for all normal beach purposes.

We are unpersuaded. Through the easements they hold in Hickey Way and the other access ways, the inland owners enjoy significant rights not possessed by the general public. For example, the inland owners can use the access ways closer to their homes and not have to walk down to the public ways to access Cape Cod Bay and the disputed flats. In addition, as we note infra, there is nothing in the undisputed facts to indicate that the inland owners necessarily would be limited to fishing, fowling, and navigation within those portions of the intertidal area that lie within the corridors of the access ways themselves. Simply put, holding that the inland owners never obtained rights to use the disputed flats for general beach purposes does not render their rights in the access ways so "worthless" that we must draw a contrary conclusion. In sum, we agree with the judge's conclusion that the first Jackson exception does not apply, and that there is no other basis for inferring the existence of easements that do not appear on the certificates of title to the shoreland lots.

3. Ambiguity in the judgment. We are not quite done, because it is appropriate that we address a facial ambiguity in the judgment, lest our affirmance of it be misunderstood. Before turning to that language, we briefly review the overall scope of the current litigation.

The case before us has always been about whether the inland owners could use the disputed flats for general beach purposes, and not just for fishing, fowling, and navigation. The portions of the intertidal beach that lie within the access ways themselves are not part of the disputed flats, because title to them is not held by the shoreland owners but instead by the unidentified heirs of the original developers (who, like the shoreland owners, presumably hold title down to the low water mark). See Hickey I, 472 Mass. at 753, 37 N.E.3d 1003. Accordingly, the extent of the inland owners' rights to use the access ways was implicated in the current litigation only to the extent that it bore on any rights they claimed in the disputed flats. The extent of their rights to use the beach area lying within the boundaries of the access ways was not at issue in this case.

The judge's well-crafted memorandum of decision is fully consistent with the scope of the litigation. Despite the length of that memorandum, there is nothing therein to suggest that the judge was adjudicating the extent of the inland owners' rights to use the access ways themselves. With one potential exception, the terms of the judgment he entered are also consistent with this scope. Thus, the judgment recites that it adjudged "that [the shoreland owners] own the portions of the [d]isputed [f]lats adjacent to their respective properties, and ... that [the inland owners] have no rights in the [d]isputed [f]lats other than their Colonial Ordinance Rights." The potential exception involves a provision in the judgment that "ORDERED and ADJUDGED that [the inland owners'] rights in the [referenced access] ways are limited to the use thereof to access the [d]isputed [f]lats solely for the purpose of exercising their Colonial Ordinance Rights" (footnote omitted). Read literally, this phrasing could be taken as saying that the inland owners have no rights to use the access ways themselves for any purpose other than those reserved by the Colonial Ordinance (that is, fishing, fowling, and navigation). We reject this interpretation, which would resolve issues outside the scope of this litigation and would be unsupported by -- and indeed inconsistent with -- the judge's memorandum of decision. Instead, we interpret the provision as meaning -- as we believe the judge intended -- that while the access ways provide the inland owners the right to gain access to the disputed flats, they may gain such access only to exercise the rights reserved by the Colonial Ordinance. We leave to another day resolution of the scope of the inland owners' rights to use the access ways themselves.

Judgment affirmed.

      We direct the reader's attention to the composite plan set forth as an appendix to Hickey I, 472 Mass. at 766, 37 N.E.3d 1003.

      The Tobey tract was registered in Land Court case no. 647, with the original decree plan no. 647-A. Subsequent developments of the Tobey tract were reflected in plans numbered 647-B, 647-C, etc. Consistent with Land Court practice, we refer to those plans, respectively, as the "B plan," "C plan," and so on. Furthermore, we refer to the lots depicted on those plans with reference to the letter number of the plan and the number of the lot assigned to it on that plan. For example, lot E on plan no. 647-B is referred to as lot B-E.

      There was a reserved upland beach lot (depicted as beach lot E-K) at the far western end of the development, which was deeded to the town in 1937.

      "We review the grant of summary judgment ... de novo to decide whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Calvao v. Raspallo, 92 Mass. App. Ct. 350, 351-352, 84 N.E.3d 949 (2017) (quotation omitted). Here, the material facts are not in dispute.

      In fact, at least at the current time, there does not appear to be any upland beach shoreward of the steep coastal bank that parallels the water on the western portion. As a result, the "beach" in dispute lies entirely in the intertidal area.

      There was, for a brief period, a small private upland beach lot that the original developers had reserved at the far western edge of the western portion of the tract (deeded to the town in 1937). See note 6, supra. If anything, the developers having carved out that beach lot further undercuts the inland owners' argument that they implicitly retained the fee to the disputed flats (which lie just to the east of the reserved upland beach lot).

      As noted, an upland beach lot had been set aside on the western portion of the tract, but that lot already had been transferred to the town in 1937, three years before the first two inland lots had been deeded out. See note 6, supra. As of 1940, the original owners also had sold most, but not all, of the shoreland lots.

      "The second Jackson exception applies where the owner takes possession of registered land with actual knowledge that an encumbrance exists." Hickey I, 472 Mass. at 756 n.28, 37 N.E.3d 1003, citing Jackson, 418 Mass. at 711, 640 N.E.2d 109. The inland owners make no claim that this exception applies.

      We pass over the question of whether, even had the original owners intended to grant the inland owners an easement in the disputed flats, the original developers reserved the right to grant such easements.

      The judge was careful to note that he was making "no ruling as to whether the owners of [l]ots H-A2 and/or H-A3 (who are not parties to this case) have any rights in the [d]isputed [f]lats, nor as to the scope of those rights, if any."

      We raised this issue sua sponte in an order issued prior to oral argument.

      Strictly speaking, Hickey I addressed only Hickey Way, not the other two private access ways at issue, but the court's reasoning would appear to apply equally to all of the ways in question.

      In yet another Land Court action -- which has been stayed pending the outcome of the current appeal -- two of the shoreland owners are seeking to litigate the scope of the inland owners' rights to use Hickey Way, the largest of the three access ways. Hickey vs. Pathways Association, Inc., Land Court No. 16 MISC 000123. Those same owners also brought a Superior Court action challenging the inland owners' efforts to construct a walkway over Hickey Way. We today have separately resolved their appeal of the dismissal of that action for lack of standing. See Hickey v. Conservation Commn. of Dennis, 93 Mass. App. Ct. 655, 107 N.E.3d 510, 2018 WL 3596093 (2018).

      We note, for example, that even though the Colonial Ordinance did not reserve for the public a right to cross privately held flats to bathe in the sea, see Butler v. Attorney Gen., 195 Mass. 79, 83, 80 N.E. 688 (1907), the inland owners here may well have the right to use the access ways here to do so (as the attorney for one of the main group of shoreland owners acknowledged at oral argument). Cf. Anderson, 326 Mass. at 133, 93 N.E.2d 251 (rights in pedestrian access way did not terminate at high water mark but necessarily included rights to access water for bathing and swimming).


author: MEADE, J.

text:
    Timothy LARKIN v. DEDHAM MEDICAL ASSOCIATES, INC.
    No. 17-P-960.
    Appeals Court of Massachusetts, Norfolk..
    Argued May 4, 2018 Decided July 31, 2018
    Douglas Howard-Driemeier (Joshua E. Goldstein also present) for the defendant.
    Adam R. Satin, Boston (Benjamin R. Novotny, Boston, also present) for the plaintiff.
    John J. Barter, Boston, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.
    Present: Meade, Maldonado, & Shin, JJ.

      Individually and as guardian and next friend of Andrea M. Larkin, and as father and next friend of Alexa Larkin.

      Jehane Johnston was also a defendant in the case. Johnston settled with the plaintiffs, and is not a party to this appeal.

   MEADE, J.

Following a trial, a jury returned a verdict for Timothy Larkin, who brought this medical malpractice suit individually and on behalf of his wife, Andrea Larkin, and his daughter, Alexa Larkin (collectively, plaintiffs, or Larkin). The jury awarded damages in the sum of $35.4 million, which a judge of the Superior Court later reduced to approximately $32.5 million on the motion of the defendant, Dedham Medical Associates (DMA). On appeal, DMA claims the judge made erroneous rulings on its posttrial motions. We affirm.

Background. The unfortunate facts of this case are not disputed in this appeal. Andrea, a former elementary school teacher, exercise class instructor, and marathon runner, complained of persistent dizziness beginning in 2004. She underwent a magnetic resonance imaging procedure at Massachusetts General Hospital (MGH), which revealed a venous varix in her brain that was determined not to be a cause of her dizziness symptoms. Her primary care doctor, Jehane Johnston, an employee of DMA, was copied on the MGH report, but failed to note the venous varix on Andrea's "problem list," which is designed to alert a patient's various treating physicians to her medical conditions. As a result, when Andrea became pregnant in 2007, her obstetricians were not informed about her venous abnormality. Andrea was not informed that this condition posed a particular risk of the venous varix rupturing during vaginal labor using the Valsalva maneuver or that an elective Caesarian section would avoid placing additional stress on the veins in her head and neck. Andrea delivered her daughter vaginally using the Valsalva maneuver in June of 2008.

Twelve hours after Andrea delivered her baby, she experienced a sudden, very painful headache, which accompanied a rupture of the venous varix in her brain. After having emergency surgery to remove a part of her skull and falling into a month-long coma, Andrea awoke to find that her legs and left hand were paralyzed, her trunk muscles were impaired, and that she had difficulty chewing, swallowing, and speaking. Despite having physical therapy twice per week, the occasional occupational, water, and speech therapies, and a "battery" of daily medications, Andrea's injuries are permanent. She requires care around the clock and likely will for the duration of her lifetime.

Larkin filed this suit against DMA and Dr. Johnston. A two-week long trial commenced on April 27, 2015. The jury rendered a verdict in favor of Larkin and awarded $35.4 million. DMA filed a series of posttrial motions for judgment notwithstanding the verdict, for a new trial and/or remittitur, to amend the pleadings to conform to the evidence, and to alter or amend the judgment, challenging the verdict and the jury award, alleging, among other things, (1) that it was entitled to the benefit of the statutory limitation on tort liability afforded to certain charitable organizations pursuant to G. L. c. 231, § 85K, as then in effect, (2) that testimony provided by Larkin's expert improperly exceeded the bounds of the parties' joint pretrial memorandum, (3) that Larkin entered into an impermissible contingent fee arrangement for consulting services, and (4) that Larkin's counsel misrepresented the amount of Andrea's past medical bills, causing an "anchoring" effect that inflated the jury award. The judge denied the majority of these motions, but reduced the jury's award in part to adjust for an error in the calculation of Andrea's past medical bills.

Discussion. 1. General Laws c. 231, § 85K. DMA first argues that the judge erred in denying its motion to amend the pleadings to conform to evidence of its charitable status pursuant to Mass.R.Civ.P. 15(a) and (b), 365 Mass. 761 (1974). It also alleges error in the judge's denial of its motion to alter or amend the judgment pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), to conform to the statutory cap on liability as provided in G. L. c. 231, § 85K, as then in effect, which limited the liability of certain charitable organizations to $20,000. For substantially the same reasons listed in the judge's thoughtful and comprehensive memorandum and order denying DMA's motions, we disagree.

a. Statutory limitation on liability. The statutory limit set forth in § 85K is an affirmative defense that must be pleaded and proved by the entity seeking to utilize it. See Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 238-239, 786 N.E.2d 824 (2003). "Although technically a limitation on liability, the charitable cap set forth in § 85K has been treated as an affirmative defense that must be pleaded under Mass.R.Civ.P. 8 (c), 365 Mass. 749 (1974) (listing specific affirmative defenses, and concluding with the residuary clause 'any other matter constituting an avoidance or affirmative defense')." Ibid., citing Harlow v. Chin, 405 Mass. 697, 715, 545 N.E.2d 602 (1989). It is undisputed that DMA did not plead the statutory cap as an affirmative defense in its answer. Therefore, as is the case with other affirmative defenses, see Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471, 583 N.E.2d 806 (1991), DMA waived the statutory limitation on liability.

b. Motion to amend. Rule 15(a) of the Massachusetts Rules of Civil Procedure permits a party to amend the pleadings "by leave of court" "when justice so requires." Rule 15(b) allows a party to amend the pleadings to conform to the evidence "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties[.]" A judge enjoys considerable discretion in deciding whether to allow or deny a motion to amend a complaint. Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842, 864, 571 N.E.2d 340 (1991). Here, the judge denied DMA's motion on both rule 15(a) and (b) grounds.

With regard to rule 15(a), as the judge stated in his memorandum and order, DMA "moved to amend its Answer to add the charitable cap as an affirmative defense after more than four years of litigation and two weeks of trial." DMA did not suggest that "this defense was unavailable to it when the Answer was filed in 2011, and, aside from inadvertence, [gave no] reason for the delay." Such a prolonged delay, the judge found, caused "manifest" prejudice to the plaintiffs and made amendment pursuant to rule 15(a) inappropriate. We agree. See DiVenuti v. Reardon, 37 Mass. App. Ct. 73, 77, 637 N.E.2d 234 (1994) ("Among the good reasons ... for which a motion to amend may be denied are that no justification for the lateness of the motion is apparent [beyond counsel for the moving party having had a late dawning idea] and that one or more of the nonmoving parties would be caught off balance by the proffered amendment"). There was no abuse of discretion.

With regard to DMA's rule 15(b) motion to amend the pleadings to conform to the evidence, the judge found that the parties did not try the issue of DMA's charitable status by either express or implied consent. Although DMA points to its pretrial efforts to have Larkin stipulate to its charitable status, Larkin refused to do so. Furthermore, Larkin objected when, on the last day of trial, DMA sought to introduce its State certificate to prove its charitable status, which was marked for identification to be kept apart from the jury. The plaintiffs objected and reserved their right to argue about DMA's status. The plaintiffs' actions reveal that they did not consent, but rather, that they expressly declined to consent to try the issue of DMA's status. Absent such consent, the judge acted within his discretion to deny DMA's 15(b) motion.

Additionally, DMA claims that the introduction of its State certificate constituted prima facie evidence of its charitable status such that the judge erred in denying its motion. We disagree. The documents DMA sought to introduce were marked for identification and were not intended for the jury. "Absent circumstances or an agreement revealing a different approach, ... 'documents marked for identification are not in evidence.' " Lingis v. Waisbren, 75 Mass. App. Ct. 464, 470, 914 N.E.2d 976 (2009), quoting from Commonwealth v. O'Neil, 51 Mass. App. Ct. 170, 177 n.7, 744 N.E.2d 86 (2001). Here, the judge did not indicate that he intended to take a different approach, as was taken in Goldberg v. Northeastern Univ., 60 Mass. App. Ct. 707, 711-713, 805 N.E.2d 517 (2004), in which the judge explicitly bifurcated the trial to resolve, separately from the jury, whether the statutory cap applied and, in doing so, marked the university's certificate of incorporation and articles of organization for identification. Instead, here, the judge reassured the plaintiffs that they had reserved their rights as to DMA's (unpleaded) limitation on liability, and indicated that "[i]f it comes to an issue, ultimately that's for post-trial jousting." It was within the judge's discretion to determine that the issue did not arise during the course of the proceedings, making any posttrial "jousting" unnecessary, and to deny DMA's motion.

2. Larkin's expert witness. DMA next claims that a new trial is warranted because Larkin's expert, Dr. Chavali, testified beyond the anticipated testimony contained within the joint pretrial memorandum. We disagree.

Our rules of civil procedure direct parties to disclose the identity of expert witnesses they plan to call and the "subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Mass.R.Civ.P. 26(b)(4)(A)(i), 365 Mass. 772 (1974). Such disclosures provide notice to the other parties about the intended use of a party's experts, who are considered key factual witnesses in medical malpractice cases. See Kace v. Liang, 472 Mass. 630, 636-640, 36 N.E.3d 1215 (2015). It is within a judge's broad discretion to admit or exclude properly disclosed expert testimony, and, absent prejudicial error, we will not disturb a judge's exercise of that discretion. Id. at 637, 36 N.E.3d 1215.

The parties' joint pretrial memorandum indicates that Dr. Chavali was expected to testify that "the size of a venous varix can change substantially and that the rupture rate increases substantially during pregnancy." The parties also anticipated Dr. Chavali would testify that "had a Cesarean Section and/or other alternative treatment ... been performed or offered to Ms. Larkin that to a reasonable degree of medical certainty she would not have suffered an intracranial bleed and the ensuing catastrophic brain injuries." In his trial testimony, Dr. Chavali described his basis for stating that pushing using the Valsalva maneuver was a cause of Andrea's injuries: increased intracranial pressure while pushing prevents blood from exiting, leading to a rupture of the venous varix. Later, he stated that the "venous aneurysm itself may not have ruptured, but [it] was the back-pressure within it from occlusion that caused this rupture. And that rupture is this hemorrhage that's in the brain."

DMA contends that Dr. Chavali testified about causation theories that went beyond the barebones pretrial disclosure. Although the pretrial memorandum did not entail the full range of explanation to which Dr. Chavali testified, what was disclosed was consistent with and not qualitatively different from his trial testimony. In other words, the disclosure was sufficient to provide DMA with notice that the plaintiffs would proffer testimony from Dr. Chavali regarding the nature and causes of the risk of undertaking the Valsalva maneuver in light of the venous varix in Andrea's brain. Dr. Chavali's testimony then provided the jury with a detailed explanation of how such a risk unfolded in this case, namely, the manner in which increased pressure from the Valsalva maneuver built up and caused the venous varix in Andrea's brain to rupture. Furthermore, the pretrial memorandum, dated June 2, 2014, supplied DMA with information regarding Dr. Chavali's intended testimony at trial almost one year prior to its commencement, ample time during which DMA could have further explored the matter.

No prejudice resulted, since the pretrial memorandum satisfied the goal of the disclosure rule: "to facilitate the fair exchange of information about critical witnesses and to prevent unfair surprise."

Kace v. Liang, 472 Mass. at 636-637, 36 N.E.3d 1215. Indeed, DMA's own pretrial expert disclosures demonstrate that DMA was on notice as to Larkin's theory of causation. DMA knew of Dr. Chavali's anticipated testimony and specifically retained multiple experts, including rebuttal testimony that the process of labor did not cause Andrea's hemorrhage. Thus, DMA understood Larkin's causation theory from the disclosure, and the trial judge, who had broad discretion to decide the matter, understood as well. DMA was prepared to and did rebut Dr. Chavali's testimony at trial.

3. Contingency fee arrangement. DMA also claims that it is entitled to a new trial because the judge improperly denied its motion for posttrial discovery regarding the plaintiffs' expert witness compensation. It alleges that the plaintiffs paid a contingency fee to New England Medical Legal Consultants, Inc. (NEMLC), and that such an arrangement undermines the integrity of the judicial process. We disagree.

While payment of a contingency fee to an expert witness is prohibited in Massachusetts, see New England Tel. & Tel. Co. v. Board of Assessors of Boston, 392 Mass. 865, 871-872, 468 N.E.2d 263 (1984), no Massachusetts authority has held the same is true of payments made to compensate a consulting service, such as the one retained by the plaintiffs here. Although not binding on us, DMA relies on cases from outside our jurisdiction holding that similar contracts are void as contrary to the established public policy of those States. See, e.g., First Natl. Bank of Springfield v. Malpractice Research, Inc., 179 Ill. 2d 353, 228 Ill.Dec. 202, 688 N.E.2d 1179 (1997). In contrast, however, such contracts have been upheld in other jurisdictions. See, e.g., Schackow v. Medical-Legal Consulting Serv., Inc., 46 Md. App. 179, 197, 416 A.2d 1303 (1980) ("All the experts were to be paid a flat fee by the client. [The consultant]'s role was limited to locating potential experts and then educating them about the case .... That arrangement does not violate the public policy of Maryland"). No consistent treatment of consulting contracts emerges from a survey of these extrajurisdictional cases.

The rule that expert witnesses may not collect contingent fees relates to a concern that contingent fees will improperly induce expert witnesses to provide outcome-oriented testimony. See Rule 3.4 of the ABA Model Rules of Professional Conduct (1983) ("A lawyer shall not ... [b] ... offer an inducement to a witness that is prohibited by law"), and comment [3] ("The common law rule in most jurisdictions is that ... it is improper to pay an expert witness a contingent fee"). See also Mass.R.Prof.C. 3.4(b), (g) & comments 3, 5, 426 Mass. 1389 (1998) (adopting American Bar Association model rule). Those same concerns are not directly implicated by the payment of contingency fees to consulting services to locate medical experts, where the medical experts are themselves paid flat fees pro rata based on their time spent preparing for and providing testimony. Where no case or rule (in this jurisdiction) prohibits the practice, we will not upset the judgment on the basis of how these consultants were paid. Moreover, DMA points to nothing in the record that suggests the payment made to NEMLC had any effect on the independence of the expert witnesses who testified for the plaintiffs. Accordingly, we find no abuse of discretion in the judge's denial of DMA's motion for new trial and/or remittitur.

4. Past medical expenses. Finally, DMA claims error in the judge's reduction of the jury award. Although the judge reduced the award for past medical bills upon DMA's motion, DMA now argues that the plaintiffs' misrepresentation of Andrea's past medical bills had an "anchoring" effect -- especially in light of a lack of evidence to support the $11 million award for future medical expenses -- that influenced the entire jury award, which the judge should have vacated. We disagree.

"Questions concerning inadequate or excessive damages are initially within the discretion of the trial judge." Pridgen v. Boston Hous. Authy., 364 Mass. 696, 715, 308 N.E.2d 467 (1974), citing Bartley v. Phillips, 317 Mass. 35, 41-44, 57 N.E.2d 26 (1944). "[A]n award of damages must stand unless ... to permit it to stand was an abuse of discretion on the part of the court below, amounting to an error of law." Reckis v. Johnson & Johnson, 471 Mass. 272, 299, 28 N.E.3d 445 (2015), quoting from Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824, 678 N.E.2d 853 (1997). An error of law occurs "if 'the damages awarded were greatly disproportionate to the injury proven or represented a miscarriage of justice.' " Reckis v. Johnson & Johnson, supra, quoting from Labonte v. Hutchins & Wheeler, supra. Furthermore, damages are considered excessive "when they are 'so great ... that it may be reasonably presumed that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, partiality, prejudice or corruption.' " Reckis v. Johnson & Johnson, supra, quoting from Bartley v. Phillips, supra at 41, 57 N.E.2d 26.

Here, the misrepresentation, the occurrence of which is not in dispute, arose as follows. Larkin's counsel, in his closing argument, stated that, considering the $4,000 per week Andrea paid for her care, a potential award of $8 million would not "include her four million dollars in medical bills." DMA did not object to this statement at the time it was made. The judge instructed the jury that attorneys' closing arguments do not constitute evidence. After entering their deliberations, the jury returned with a question that indicated the jury may have been influenced by the misrepresentation: "Out of the four million dollars of medical bills, how much was paid out of pocket by the Larkin Family?" In answering the jury's question, the judge instructed the jury that Larkin is "entitled to be ... compensated for those expenses which were reasonable in amount and which were reasonably necessary." To make that determination, the judge explained that "[i]temized medical hospital bills were admitted as evidence of the fair and reasonable charges for such services." Again, neither party corrected the misrepresentation and DMA did not object to it.

The judge determined there was no dispute that, in light of the evidence introduced, Andrea's past medical bills amounted to $1,272,013.70, rather than $4 million, the amount referenced in Larkin's closing argument. The award for past medical bills, as the judge found, "likely resulted from mistaken representations to the jury by the plaintiffs at trial and, in any event, ... lacked a sufficient evidentiary foundation to avoid reduction." Accordingly, the judge reduced the award for past medical expenses to the baseline amount reflected in the record. DMA does not allege that this reduction was an abuse of discretion.

DMA claims that, because the plaintiffs introduced limited evidence as to future medical expenses, the jury may have relied on the misrepresentation to reach its $11 million award for anticipated future medical costs. In arguing a lack of evidence related to future medical costs, DMA cites to (1) Dr. Chavali's statement that Andrea's injuries were permanent; (2) Andrea's father's testimony that her medical costs at the time "roughly" totaled $4,000 per week; and (3) evidence that Andrea's life expectancy was another forty-seven years from the time of trial. DMA claims that this was insufficient evidence on which to base an award for future damages, and, therefore, that the misrepresentation "anchored" the jury, leading to an improper award. We disagree.

Although the plaintiffs did not introduce expert witnesses to prove future medical expenses, DMA points to no case holding that such evidence is required, and it raises no independent argument that the damages award should be vacated on this basis. Cf. Simon v. Solomon, 385 Mass. 91, 105, 431 N.E.2d 556 (1982). Based on the testimony that Andrea's medical care costs "roughly $4,000 a week" and that her injury is permanent -- testimony that the jury were free to credit -- and that her life expectancy is another forty-seven years, the jury could have reasonably calculated that the plaintiffs were entitled to $11 million for future medical expenses. This figure could represent an estimated weekly cost of $4,500, totaling $234,000 per year, spread over forty-seven years. The jury's reasonable calculation, grounded in the evidence at trial, could have been made without any reference to Larkin's misrepresentation. It is not disproportionate to Andrea's injuries, as it is based in Andrea's current costs, which are likely to continue in the future. Nor does it indicate the jury were "influenced by passion, partiality, prejudice or corruption." Reckis v. Johnson & Johnson, 471 Mass. at 299, 28 N.E.3d 445, quoting from Bartley v. Phillips, 317 Mass. at 41, 57 N.E.2d 26. Therefore, the judge neither erred nor abused his discretion in reducing only the award for past medical bills. See Ramos v. Storlazzi, 10 Mass. App. Ct. 876, 877-878, 409 N.E.2d 217 (1980) (finding no abuse of discretion where judge denied motion for new trial based on misrepresentations that were admitted into evidence without objection).

Judgment affirmed.

Orders denying postjudgment motions affirmed.

      Because the parties share a surname, we refer to Andrea by her first name.

      We acknowledge the amicus brief filed by the Professional Liability Foundation, Ltd.

      Larkin's expert witness, Dr. Ram V.S. Chavali, testified that a "venous varix is essentially an aneurysm but on the venous side," an aneurysm being "[a] weakening and an enlargement." He further explained that a "[v]arix is a dilation ... of a blood vessel."

      At trial, Dr. Chavali defined the Valsalva maneuver as "holding your breath and pushing against that held breath."

      Later, Dr. Johnston and the plaintiffs settled for $4,768,553.50, to which DMA was not a party.

      General Laws c. 231, § 85K, was amended by St. 2012, c. 224, § 222, effective November 4, 2012, to increase the cap for medical malpractice claims against nonprofit organizations providing health care from $20,000 to $100,000. The $20,000 cap for other tort claims against charitable organizations that do not provide health care remained unchanged. Because the 2012 amendment occurred after the plaintiffs filed their 2011 complaint, the relevant potential limit for DMA's liability is $20,000, which was in effect for all charitable organizations at that time. See St. 1971, c. 785, § 1. Except as otherwise noted, we refer to the earlier version as § 85K.

      The prejudice to Larkin included the loss of opportunity to take pretrial discovery relating to the charitable cap. Furthermore, had DMA raised the charitable cap in a timely manner in its answer, Larkin might have decided to settle with DMA early in the proceeding, rather than incur the costs of trial.

      Contrary to DMA's assertion, § 85K does not mandate that the cap be applied whenever a defendant proves its status. Rather, "[T]he directive refers to the requirement that a charitable corporation must be engaged in its charitable purpose to enjoy the benefit of the cap." Keene v. Brigham & Women's Hosp., Inc., 439 Mass. at 239, 786 N.E.2d 824. Because the judge never addressed DMA's charitable status, he did not need to reach the second question, concerning engagement in its charitable purpose.

      Although it does not affect our analysis, we note that, despite being raised in the pretrial disclosure and discussed at a sidebar conference, Dr. Chavali did not explain that a Cesarean section is recommended for women with venous varices.

      DMA additionally claims that the earlier statements in Dr. Chavali's testimony contradicted his later statements. The judge found that DMA, arguing in support of its motion for judgment notwithstanding the verdict, stripped Dr. Chavali's later statements from their context within the surrounding testimony and were not, as DMA contends, contradictory to his earlier statements regarding causation. We agree. However, even if Dr. Chavali's statements were contradictory, it is within the province of the jury to discount or credit an expert's opinion. See Leibovich v. Antonellis, 410 Mass. 568, 573, 574 N.E.2d 978 (1991), citing Banaghan v. Dewey, 340 Mass. 73, 79, 162 N.E.2d 807 (1959).

      The judge found that the contract between the plaintiffs and NEMLC expressly provided that "no payment to any Expert Witness will be directly or indirectly contingent upon the outcome of the Client's case."

      The judge noted in his memorandum and order that Larkin "attributed the discrepancy to a 'decimal point error,' which [Larkin] assert[s] was made in good faith."

      The judge also adjusted the past damages award to include $14,902.24 of medical expenses that were not submitted at trial. After adjusting for the misrepresentation and the additional expense, the judge then reduced the award for past medical expenses to $401,517.19, accounting for the amount the plaintiffs had received from private health insurance, pursuant to G. L. c. 231, § 60G. No argument has been made that this was improper.

      Although this figure differs from the amount testified to at trial, a reasonable jury could conclude that $4,500 per week is an amount "roughly" in the range of $4,000. The jury had access to the plaintiffs' past medical bills, which they could have referenced to support their calculations.

      This results in an exact figure of $10,998,000, which the jury could have rounded up by $2,000, to reach its $11 million award.