LIDIANE A. ROCHA & Another v. NILTON MEDINA & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-12

LIDIANE A. ROCHA & another1

vs.

NILTON MEDINA & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On June 5, 2023, following a medical malpractice trial in

the Superior Court, a jury returned verdicts in favor of the

plaintiffs, Lidiane A. Rocha (Rocha) and her husband Marcizio

Araujo, for claims of negligence and loss of consortium against

defendant Nilton Medina (Dr. Medina). The jury awarded damages

against Dr. Medina but not Boston Medical Center (BMC), finding

that BMC had no power over Dr. Medina's treatment decisions. A

judgment entered on June 6, 2023, and Dr. Medina now appeals,

asserting that the judge below committed reversible error by (1)

denying Dr. Medina's request for a new trial, and (2) failing to

1 Marcizio J. Araujo.

2 Boston Medical Center.
properly instruct the jury as to factual or "but-for" causation.

Dr. Medina also argues that the judgment must be vacated due to

insufficient evidence as to the element of causation, and

because the judgment was rendered by a Superior Court jury of

less than twelve members. We affirm.

Background. We summarize the following relevant facts,

while reserving further facts for discussion.

On February 11, 2015, Rocha underwent a bilateral breast

reduction surgery performed by Dr. Medina at BMC. The parties

disputed whether Dr. Medina arrived late to the hospital on the

morning of the surgery, since the surgery commenced over an hour

after it was scheduled to begin. When he arrived, Dr. Medina

immediately began his preoperative markings, which Rocha

testified that he completed in under five minutes.3 Dr. Medina

did not use a tape to take any measurements or take photographs

of the preoperative markings. At trial, Mark Weinstein (Dr.

Weinstein), an expert on plastic surgery retained by Rocha,

testified that Dr. Medina failed to perform critical

measurements and a corresponding visual assessment to determine

the proper location of Rocha's nipples, and breached the

3 Preoperative markings identify the surgical site and help
the surgical team perform incisions.
2
standard of care by ultimately placing Rocha's nipples too high

on her breasts.

In the days following the surgery, Rocha noticed that her

nipples were unusually high, and were protruding from the top of

her bra. In February, March, and May of 2015, Rocha returned to

the BMC with complaints of her nipples being too high. She was

told that it was still early, and that once the swelling went

down her nipples would fall into place. After several months of

waiting for the healing process to lower her nipples without

much change, Dr. Medina agreed to perform a second procedure to

surgically lower the nipples. Dr. Medina performed this surgery

free of charge and offered Rocha free liposuction of her abdomen

and back. The second surgery was unsuccessful in lowering the

nipples and resulted in scarring that was not present after the

first surgery. During her direct examination at trial, Rocha

testified that during a postoperative visit with Dr. Medina

following the second surgery, Dr. Medina assured her that he

would fix her high nipples. Rocha further testified that Dr.

Medina approached her and hugged her while she was dressed only

in her underwear, and that he told Rocha "not to worry because

[she] was going to look really good, and it was just the

process." Dr. Medina's trial counsel did not contemporaneously

object to the admission of this testimony but did object at a

3
subsequent lunch break and requested a mistrial for its

admission.4 The request was grounded on relevance, lack of

notice regarding the doctor's alleged conduct, and the potential

prejudice arising from the testimony. The judge heard from both

parties' trial counsel, and after a lengthy sidebar discussion

concluded that the doctor was provided adequate notice regarding

his alleged behavior, albeit "not as much notice as [the judge]

would have liked," and denied the motion. The judge also

concluded, however, that a curative instruction to the jury was

warranted and provided one thereafter.

Discussion. 1. Motion for new trial. Dr. Medina argues

that the trial judge committed reversible error by failing to

grant his motion for a new trial. His motion was primarily

premised on the admission of Rocha's testimony regarding the

alleged hug, as well as the trial judge's curative instruction

regarding that testimony and the judge's failure to strike the

testimony sua sponte or grant a mistrial. These arguments are

unavailing.

We review the denial of a motion for a new trial "for a

significant error of law or abuse of discretion." Commonwealth

4 Dr. Medina's counsel did object earlier in the trial when
Dr. Medina was asked by Rocha's counsel during cross-examination
whether he ever recalled hugging Rocha while she was alone in
his office and "was dressed not at all." However, the basis for
the objection is not apparent on the record.
4
v. Sanchez, 100 Mass. App. Ct. 644, 647 (2022). "[A] new trial

should be granted only when on a survey of the whole case it

appears to the judge that otherwise a miscarriage of justice

would result" (quotation and citation omitted). Fitzpatrick v.

Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507,

514 (2021).

A request for a mistrial is "an immediate, on-the-spot

response to a specific issue so serious that it warrants

breaking off a trial that has begun, and may be close to

concluding." Fitzpatrick, 487 Mass. at 513. Therefore, "[i]n

both civil and criminal cases, a motion for a mistrial must be

made immediately after the events prompting the motion occur, or

as soon as the moving party learns of them." Id., citing

Commonwealth v. DiPietro, 373 Mass. 369, 387 (1977). "[A]

mistrial is generally regarded as the most drastic remedy and

should be reserved for the most grievous error where prejudice

cannot otherwise be removed" (quotations and citation omitted).

Fitzpatrick, supra. We review the denial of a motion for a

mistrial for an abuse of discretion. See Commonwealth v.

Bryant, 482 Mass. 731, 739 (2019).

Here, it is undisputed that Dr. Medina's trial counsel did

not contemporaneously object to Rocha's testimony about the

alleged hug, and instead chose to address the issue with the

5
trial judge some two hours later at a sidebar conference during

the lunch break, which is also when she first requested a

mistrial. Because Dr. Medina's motion for a mistrial was

untimely and therefore unpreserved, we review to determine

whether the trial judge's denial of the mistrial created a

substantial risk of a miscarriage of justice. See Fitzpatrick,

487 Mass. at 513. In concluding that a substantial risk of a

miscarriage of justice did not result, we are confident that the

trial judge's curative instruction appropriately dealt with the

prejudice stemming from Rocha's testimony. The curative

instruction informed the jurors:5

"During this trial, you may hear testimony about an
interaction between the plaintiff, Ms. Rocha, and the
defendant, Dr. Medina, involving a hug. You may or may not
find this evidence relevant to the issues in this case. If
you don't find it relevant, you are to disregard it. If
you do find it relevant, you are to consider why it is
relevant and then consider it for that limited purpose or
purposes only. This is not being offered to show bad
character on the part of Dr. Medina and you should not
consider it as such. So it is your -- it is totally within
your province to decide is this evidence relevant? If it's
not, disregard it. If you find that it is relevant, you
need to decide why and then apply it solely for that
limited purpose of why you think it's relevant."

Dr. Medina contends that this curative instruction was "an

improper delegation of judicial function" because instructing

the jury to determine whether the testimony was relevant "did

5 The trial judge assumed that all parties objected to the
curative instruction and noted their objections on the record.
6
nothing to alleviate the harm . . . [but instead] left [the

testimony] for the jury to use . . . for any purpose [they]

wished." Contrary to this contention, the instruction mandated

Rocha's testimony should not be considered "to show bad

character on the part of Dr. Medina," and should only be

considered to the extent the jury finds it relevant to a

particular issue in the case. Indeed, it was well within the

judge's discretion to use a curative instruction to "correct any

error and to remedy any prejudice to the defendant" (citation

omitted), Commonwealth v. Costa, 69 Mass. App. Ct. 823, 827

(2007), and we disagree that the instruction failed to do so

here.6 Likewise, given this curative instruction we also

conclude that the trial judge's failure to strike Rocha's

testimony sua sponte did not create a substantial risk of a

miscarriage of justice.7 Accordingly, we see no abuse of

6 We also note that although Dr. Medina's trial counsel
asserted both at trial and in his motion for a new trial that
Dr. Medina was not provided with notice of Rocha's testimony,
Dr. Medina was, in fact, asked about the alleged hug during his
October 2019 deposition.

7 Dr. Medina's trial counsel did not move to strike Rocha's
testimony.

7
discretion in the judge's denial of Dr. Medina's motion for a

new trial. Sanchez, 100 Mass. App. Ct. at 647.8

2. Causation arguments. Dr. Medina sets forth two

arguments on appeal relating to causation. First, he argues

that the trial judge, by using the Superior Court model jury

instructions, failed to adequately instruct the jury on factual

or "but-for" causation in contravention of the Supreme Judicial

Court's decision in Doull v. Foster, 487 Mass. 1, 6 (2021).

Second, Dr. Medina contends that the evidence presented at trial

was insufficient for a jury to find that Dr. Medina's negligence

caused Rocha's high nipples. We disagree.

a. Jury instructions. Dr. Medina argues that the trial

judge's use of the model jury instructions did not comply with

Doull because the model instructions diluted the "but-for"

standard of causation by stating that causation can be found if

a defendant's negligence "make[s] a difference," "ha[s] an

8 Dr. Medina also identifies the following "erroneous
rulings" that trial counsel did object to: (1) the trial
judge's allowance of the impeachment of Dr. Medina when he
testified about textbooks and literature that were not disclosed
in his pretrial interrogatories; (2) the use of medical records
of other patients treated by Dr. Medina; (3) the admission of a
weather report on the day of the first surgery; and (4) the
admission of a picture of Rocha measuring the distance from her
sternal notch to her nipple. However, we conclude that none of
these rulings amounted to an abuse of discretion or error of
law. See Antoniadis v. Basnight, 99 Mass. App. Ct. 172, 176
(2021), citing Zucco v. Kane, 439 Mass. 503, 507 (2003).
8
impact," or "was a factor in causing" a plaintiff's injuries.

The Supreme Judicial Court's recent decision in Luppold v.

Hanlon, 495 Mass. 148, 160 (2025), rejected this argument and is

instructive. In Luppold, supra, the court upheld a trial judge's

use of the model instruction on causation, stating that "the

instructions as a whole . . . conveyed a 'but-for' causation

requirement as explained in Doull."9 The court further noted

that "the inclusion of the word 'impact' tracks language we used

in Doull [which stated] 'the purpose of [the] but-for standard

is to separate the conduct that had no impact on the harm from

the conduct that caused the harm." Luppold, supra at 161,

quoting Doull, 487 Mass. at 11. Accordingly, we find no error

in the trial judge's causation instruction.

b. Causation evidence. Dr. Medina asserts that there was

insufficient evidence on the issue of causation because Rocha's

expert, Dr. Weinstein, did not opine that Dr. Medina caused

Rocha's injuries. Specifically, Dr. Medina asserts that Dr.

Weinstein did not testify that Dr. Medina's failure to perform

measurements resulted in Rocha's high nipples, and that Dr.

Weinstein erroneously stated that "bottoming out" was not an

9 As was the case here, the jury instruction used by the
trial judge in Luppold, 495 Mass. at 159, "largely tracked that
of the Superior Court's model jury instruction on causation."
9
inherent risk of a breast reduction procedure.10 He also argues

that Dr. Weinstein improperly testified that Dr. Medina's

failure to perform two additional preoperative measurements fell

below the standard of care. To be sure, Dr. Medina is correct

that a causal link between a defendant's negligence and

plaintiff's injuries generally must be established by expert

testimony, Harlow v. Chin, 405 Mass. 697, 702 (1989). Here,

however, Dr. Medina's arguments misinterpret Dr. Weinstein's

testimony.

At trial, Rocha's theory was that Dr. Medina was negligent

by placing her nipples too high during her breast reduction

surgery. To prove this theory, Rocha sought expert testimony

from Dr. Weinstein who opined that Dr. Medina failed to take the

proper measurements, such as measurements from the sternal notch

and the mid humerus, which was a failure to meet the standard of

care that resulted in Dr. Medina placing Rocha's nipples too

high on her chest during surgery, causing her to have high

nipples.11 His exact testimony was as follows:

10Bottoming out is a phenomenon that can occur during the
healing process following certain breast procedures when breast
tissue drops to the lower pole of the breast. However, the
parties disputed throughout trial whether bottoming out can lead
to high nipples.

11The sternal notch is an indentation in the upper part of
the sternum located between the clavicles and at the base of the
neck.
10
Q.: "Okay. What's this line depicted on the screen?"

A.: "Using the mid humerus is one way to determine
where the nipple should be. You have to view all of
these things in terms of using each measurement or
visualization in determining where the nipple should
be. It's not just one. It's a total picture of all
of these criteria to measure where the nipples should
be . . . [i]f we use [the sternal notch measurement]
plus the humerus plus the Inframammary Fold, you
always determine where the nipple should be."

Q.: "And is that a reliable method of determining the
proper location?"

A.: "Yes, that's really [the] standard of care in
determining where the nipple should be."

Q.: "Okay. And does the standard of care require
that a physician take those measurements?"

A.: "Yes, it does."

Q.: "And in your review of the medical literature in
this case regarding Dr. Medina's surgery, did he
utilize these measurements?"

A.: "I did not see any documentation that he utilized
them."

Q.: "Okay. And based on that, do you form an opinion
to a reasonable degree of medical certainty whether
Dr. Medina met the standard in the performance of this
surgery?"

A.: "Yes, he did not meet the standard of care by
placing the nipples too high."

. . .

Q.: "And why can't you fix [high nipples]?"

A.: "There's no way to raise the nipple after you've
placed it too high. There's just no way."

11
Contrary to Dr. Medina's argument, Dr. Weinstein did

testify that Dr. Medina caused Rocha to have high nipples, by

failing to use proper measurements. Although Dr. Medina, as

well as his expert, Dr. Pandya, testified that the standard of

care only requires that a physician take the inframammary fold

measurement to determine nipple placement, the jury were free to

credit or discredit some or all of either Dr. Pandya's or Dr.

Weinstein's testimony as to what measurements or assessments

were required by the standard of care. See Doull, 487 Mass. at

19-20 (upholding jury instruction requiring jurors to determine

which expert opinion they credit as to appropriate standard of

care). Furthermore, while Dr. Pandya testified that Rocha's

high nipples resulted from bottoming out, Dr. Weinstein

disagreed and stated that Dr. Medina placed the nipples too high

on Rocha's chest during the first surgery.12 Dr. Weinstein also

provided extensive testimony as to why bottoming out would not

have caused Rocha to have high nipples.13 Given these

12Here again, the jury were free to credit either expert as
to whether bottoming out was an inherent risk of a breast
reduction procedure. See Leibovich v. Antonellis, 410 Mass.
568, 573 (1991) (jury's duty "is to assess the soundness and
credibility" of expert opinions).

13Dr. Weinstein testified that bottoming out only changes
the orientation of the nipple rather than its position on the
breast and does not cause the entire areola-nipple complex to
rise.
12
conflicting views, it was the jury's function to resolve the

conflicts in the testimony and to credit either Dr. Pandya or

Dr. Weinstein's testimony as to the cause of Rocha's high

nipples. See Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct.

333, 335 (1992) (presented with battle of experts, fact finder

may reject some opinions and accept others). As such, there was

sufficient evidence for a jury to conclude that Dr. Medina's

negligence caused Rocha's condition.

3. Jury of twelve. Dr. Medina finally argues that the

judge erred in denying his request for a new trial because he

was tried before a jury of six rather than a jury of twelve in

violation of Article 15 of the Massachusetts Declaration of

Rights.14 Dr. Medina cites historical treatises, law review

articles, and entries from John Adams's diary in an effort to

persuade us to revisit the longstanding principle that Article

15, "while guaranteeing trial by jury in certain civil cases,

does not prescribe the number of jurors."15 Doyon v. Providence

14Dr. Medina was tried before a jury of six pursuant to the
Supreme Judicial Court's seventh updated order regarding court
operations under the exigent circumstances created by the COVID-
19 pandemic.

15Article 15 of the Massachusetts Declaration of Rights
secures the right to a trial by jury in "all controversies
concerning property, and in all suits between two or more
persons."
13
& Worcester R.R. Co., 31 Mass. App. Ct. 751, 753-754 (1992). We

decline to do so.16

Judgment affirmed.

Orders denying postjudgment
motions affirmed.

By the Court (Desmond,
Walsh & Toone, JJ.17),

Clerk

Entered: March 3, 2025.

16Because Article 15 does require a jury of twelve members,
we need not analyze whether the seventh updated order satisfied
strict scrutiny.

17 The panelists are listed in order of seniority.
14