Julie DeOliveira v. Greg Trecaso

Supreme Court

No. 2024-66-Appeal.
No. 2024-72-Appeal.
(PC 12-1012)

Julie DeOliveira et al. :

v. :

Greg Trecaso et al. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2024-66-Appeal.
No. 2024-72-Appeal.
(PC 12-1012)

Julie DeOliveira et al. :

v. :

Greg Trecaso et al. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Long, for the Court. The plaintiffs, Julie and Maxine DeOliveira1

(Julie, Maxine, or plaintiffs), appeal from a final judgment entered following a jury

verdict in favor of the defendant, Star Insurance Company (Star or defendant), on

their action alleging negligence against Greg Trecaso (Mr. Trecaso), Star’s insured,

for a motor vehicle accident that occurred on Interstate 95 South in March 2010.

The defendant filed a cross-appeal alleging error in the trial justice’s decision to deny

its motion for judgment as a matter of law.

1
Because this case involves a motor vehicle accident during which both Julie and
her daughter, Maxine DeOliveira, were allegedly injured, we use each person’s first
name for clarity. We intend no disrespect.
-1-
Because we conclude that the trial justice did not err in denying plaintiffs’

motion for a new trial or in any other respect, and accordingly affirm the judgment,

we do not reach the merits of defendant’s cross-appeal.

Facts and Procedural History

A description of the pertinent procedural history and a brief summary of

testimony and evidence relevant to this appeal follow. Additional facts relevant to

the specific issues identified in plaintiffs’ papers appear in the discussion of the

issues.

Julie initiated the instant case on behalf of herself and her then-minor daughter

by filing a four-count complaint against Mr. Trecaso and Greg Trecaso d/b/a GCT

Transport alleging that Mr. Trecaso negligently operated his motor vehicle and

caused a collision with Julie’s vehicle on Interstate 95 South in Cranston, Rhode

Island, on March 25, 2010. Shortly after filing her complaint, and before Mr.

Trecaso filed a response, Julie amended the complaint to add Star Insurance as a

defendant. Star’s answer admitted that it insured Mr. Trecaso, but otherwise denied

the allegations in the amended complaint. In addition, Star asserted a counterclaim

for indemnification against Julie, who was driving on the day of the accident.2

Maxine turned eighteen during the course of the litigation and was thereafter

2
Julie was represented by a different attorney for Star’s counterclaim. We refer to
this attorney as “counterclaim counsel” for clarity.

-2-
substituted as an independent plaintiff. Meanwhile, Mr. Trecaso and Greg Trecaso

d/b/a GCT Transport were dismissed from the case because plaintiffs failed to

effectuate service.

Prior to the commencement of a four-day jury trial in September 2023, the

trial justice considered and denied plaintiffs’ motion to exclude the introduction of

a video deposition of Mr. Trecaso. In their motion in limine, plaintiffs argued that

the trial justice should prohibit admission of the videotaped deposition because the

court lacked personal jurisdiction over Mr. Trecaso, who had been dismissed from

the case with prejudice. The trial justice denied the motion and admitted the video

under Rule 32 of the Superior Court Rules of Civil Procedure, thereby rejecting

plaintiffs’ argument that the Superior Court lacked jurisdiction over him.

During their opening statement, plaintiffs played a recording of a 911 call

from an unidentified witness who reported, “I just saw a really bad car crash on 95

south * * * by exit 14 or so.” The 911 caller further stated that a tractor trailer

“flip[ped] a car” and that “the tractor trailer just smashed the car, I don’t know really

what happened, a tractor trailer smashed into a white car.”

Julie then testified that she was “driving straight” on Interstate 95 South on

the date of the accident when she “noticed [a] truck coming on from [the] Jefferson

Boulevard [on-ramp]. And then * * * like out of nowhere, I just felt a pull on my car

and a thump, thump, thump. And I lost total control of the car.” After colliding with

-3-
the truck, Julie stated that she crossed several lanes of traffic, hit the wall separating

the north and southbound sides of Interstate 95, and “tipped sideways, like, upside

down.” Julie testified that the truck with which she collided “was coming onto the

highway to the lane that I was going to go [into]” but that she did not see the truck

enter her lane. Julie testified that she was eventually pulled from the car by

emergency services, at which point she noticed an injury to her shoulder. Julie

explained that the injury to her shoulder ground her world to a “halt” and required

the aid of several certified nursing assistants. On cross-examination, Julie was

impeached with evidence of her medical history which reflected a lack of

cooperation with various members of her medical team, inconsistencies in her

responses to interrogatories and deposition questions when compared to her trial

testimony, and evidence of a volatile relationship with her daughter in the months

following the accident.

The plaintiffs next introduced a partially edited version of the video recording

of Mr. Trecaso’s deposition notwithstanding their pretrial motion in limine to

exclude the deposition entirely.3 Mr. Trecaso testified that he was driving his truck

in the second lane from the right when he saw Julie’s car come up on his left-hand

side “with a right turn signal on.” Mr. Trecaso explained that he heard a “crunch,

3
A transcript of that testimony was marked as an exhibit for identification reflecting
redactions ordered by the trial justice.
-4-
and [he] look[ed] in [his] mirror and [saw] this car going off to the left toward the

median and hit the Jersey wall.” Mr. Trecaso stated that he was not changing lanes

at the time of the accident and that he had been in the center lane “most of the way

through town.” Mr. Trecaso further testified that, after getting out and inspecting

his truck, he surmised that Julie’s car “hit [his] tires.” Mr. Trecaso testified that he

was traveling in the second lane at the time of the accident and that Julie’s car was

“coming into my lane.”

The plaintiffs also called Maxine as a witness. Maxine testified that she “saw

a big truck coming. And then all of a sudden, it just -- just boom. Just felt this just

big push. And that’s when we just went across the lanes.” The plaintiffs’ attorney

asked Maxine whether Julie left her lane of travel before the collision, and Maxine

responded “no.” The plaintiffs’ attorney then asked whether the truck had come into

their lane of travel, to which Maxine responded, “That was my understanding. It

looked like that’s what he was doing. And it’s just -- it was just a split second of him

moving over and ‘psht’, hit us.”

On cross-examination, Star’s attorney presented Maxine with a photograph of

her mother’s car from the date of the accident and asked whether she could identify

an on-ramp in the vicinity of the car in the photograph; Maxine responded that she

could not see one. Star’s attorney then asked Maxine whether her mother’s story

about Mr. Trecaso entering the highway from an on-ramp could have been mistaken;

-5-
Maxine did not directly respond. Star’s attorney also asked Maxine to confirm

whether, at her deposition, she stated that she had not seen the collision itself;

Maxine responded that that was her testimony. Following Maxine’s testimony, and

the testimony of two witnesses whose statements are not pertinent to the instant

appeal, plaintiffs rested. Star’s attorney subsequently moved for judgment as a

matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure;

the trial justice reserved ruling on that motion.

Star’s only witness in its case-in-chief was Trooper Lisa Hanley of the Rhode

Island State Police, who investigated the accident. Trooper Hanley testified that,

upon arriving at the scene, she located Julie’s car about 200 feet north of the

Jefferson Boulevard on-ramp. Based on information she gathered from individuals

on the scene, she determined that Mr. Trecaso was not entering the highway from

the on-ramp at the time of the accident. Trooper Hanley then read the narrative

summary of her police report into the record. The report indicated that Mr. Trecaso

was traveling south, and that Julie’s vehicle was in the process of changing lanes,

when the rear passenger door of her car sideswiped the front fender and tire of Mr.

Trecaso’s truck. Both plaintiffs’ counsel and counterclaim counsel cross-examined

Trooper Hanley, largely questioning the thoroughness of her investigation.

Immediately prior to a short rebuttal examination of Julie at the close of Star’s

case, Star renewed its earlier motion for judgment as a matter of law. The plaintiffs’

-6-
attorney additionally raised certain objections to the verdict sheet and to statements

made during Star’s closing statement. The jury subsequently returned a verdict

finding that neither Julie nor Maxine proved by a fair preponderance of the evidence

that Star was negligent.

Julie and Maxine thereafter filed a motion for a new trial alleging a host of

errors. The plaintiffs’ motion for a new trial and Star’s renewed motion for judgment

as a matter of law were heard at two separate hearings before the trial justice. The

first, in late September 2023, concerned defendant’s motions for judgment as a

matter of law. We do not address the substance of those motions in deciding the

instant appeal; we note, however, that the trial justice denied the motions on the basis

of judicial estoppel. The second hearing, held in October 2023, addressed plaintiffs’

motion for a new trial, which the trial justice denied. Both plaintiffs and defendant

filed timely notices of appeal. We refer to additional facts as needed in our

discussion of the issues.

Issues Presented

On appeal, plaintiffs present eleven alleged errors. They argue that the trial

justice abused his discretion in three ways related to the deposition of Mr. Trecaso;

abused his discretion in two ways related to Trooper Hanley’s testimony; and abused

his discretion in denying objections to defendant’s statements during opening

remarks and closing arguments. The plaintiffs also argue that the trial justice

-7-
committed an error of law in both the jury instructions and the phrasing of the verdict

sheet and that he abused his discretion by overruling their objection when defendant

violated the empty chair doctrine. Finally, plaintiffs appeal the trial justice’s denial

of their motion for a new trial.

In its appeal, Star challenges the trial justice’s decision to deny its renewed

motion for judgment as a matter of law on the grounds that plaintiffs failed to meet

their burden of exhausting the possibility of litigating their claims directly against

Mr. Trecaso under G.L. 1956 § 27-7-2 prior to amending their complaint to name

Star as a defendant, and on the grounds that judicial estoppel had been incorrectly

applied to their claim.

Having thoroughly reviewed the record, we affirm the trial justice’s decision

with regard to each of plaintiffs’ alleged errors. Accordingly, we decline to address

Star’s cross-appeal challenging the denial of its motions for judgment as a matter of

law.

Mr. Trecaso’s Deposition Testimony

We first consider plaintiffs’ multiple assertions of error with respect to the

trial justice’s decision to admit Mr. Trecaso’s deposition testimony. We review a

trial justice’s decision to admit evidence under an abuse of discretion standard.

Accetta v. Provencal, 962 A.2d 56, 60 (R.I. 2009). A trial justice has wide discretion

to determine the relevance, materiality, and admissibility of offered evidence, and

-8-
we will uphold a trial justice’s decision to admit or exclude evidence unless the trial

justice clearly abused her or his discretion and the evidence is “both prejudicial and

irrelevant.” Id. at 60 (quoting State v. Merida, 960 A.2d 228, 234 (R.I. 2008)). Based

on our review of the record, we conclude that the trial justice did not err in admitting

portions of Mr. Trecaso’s videotaped deposition.

First, plaintiffs argue that the trial justice erred in failing to exclude certain

statements in Mr. Trecaso’s deposition in which he stated that Julie drove into his

truck. The plaintiffs objected to the introduction of this evidence prior to trial on the

basis that Mr. Trecaso “did not witness Ms. DeOliveira’s car drive into his Tractor

Trailer” and therefore he was not qualified to testify to whether Julie drove into him.

The trial justice denied plaintiffs’ request in a written order. The trial justice found

that plaintiffs’ attorney was “present or had the opportunity to be and did not raise

objections or move to strike” and that “counsel now moves to strike their own

questions and answer received, after not having done so at the deposition.”

We conclude that the trial justice did not abuse his discretion in admitting

those portions of the deposition testimony. Each of the answers plaintiffs now seek

to have this Court determine were impermissibly admitted were precipitated by a

question from plaintiffs’ counsel. Although our rules do not require that a party

make an objection during a deposition in order to later object to a statement’s

relevancy or materiality, a trial justice has wide discretion to admit evidence it deems

-9-
relevant and material. See Super. R. Civ. P. 32(e)(3)(A); Accetta, 962 A.2d at 60.

Here, the trial justice correctly found that plaintiffs elicited the responses which they

sought to have excluded, and, as a result, declined to grant plaintiff’s motion.

Moreover, it is apparent from the recorded deposition that Mr. Trecaso’s statements

were both relevant and material. Specifically, Mr. Trecaso’s conclusion that Julie

drove into him was based on his perception of the series of events both before and

after her collision with his truck and was therefore relevant to the question of whose

conduct caused the accident. See R.I. R. Evid. 401 (defining “relevant evidence”);

R.I. R. Evid. 602 (describing requirement that a witness possess personal knowledge

of the matter on which they are to testify). Accordingly, we conclude that the trial

justice did not abuse his discretion in admitting those statements.

The plaintiffs next argue that the trial justice abused his discretion in failing

to exclude statements in Mr. Trecaso’s deposition that purportedly constituted

improper vouching for his own credibility and an improper attack on Julie’s

credibility. In particular, plaintiffs object to statements during Mr. Trecaso’s

deposition where he stated that plaintiffs’ counsel was “not involved with the truth,”

that “I should have [a lawyer] against you,” and that “[y]ou need to stand up and say

that.” In addressing plaintiffs’ argument in response to their motion to exclude those

statements, the trial justice denied plaintiffs’ request on the ground that plaintiffs’

counsel “acted inappropriately and unprofessionally by accusing the witness of

- 10 -
attempting to derail, questioning the meaning of the oath * * *, questioning the

witness’s ‘world view’ and otherwise arguing with [the] witness.” At the hearing

on plaintiffs’ motion for a new trial, the trial justice added that he chose to admit Mr.

Trecaso’s statements so that the “jury [could] get a sense of” the deposition including

the “unnecessarily hostile” nature of plaintiffs’ counsel’s line of questioning.

In our review of the record, we are satisfied that the trial justice did not abuse

his discretion in admitting these statements based on the fact that Mr. Trecaso’s

statements were given in response to plaintiffs’ counsel’s questions, and because the

trial justice has wide discretion in determining the materiality of evidence presented

to the jury. Accetta, 962 A.2d at 60. We are unpersuaded by plaintiffs’ suggestion

that these statements suggested an opinion on Julie’s credibility. Rather, it is plain

from the transcript of the deposition that Mr. Trecaso’s statements were directed at

plaintiffs’ counsel and not Julie, and therefore could not have constituted

impermissible comments about Julie’s credibility. We therefore find no abuse of

discretion in the trial justice’s decision to admit these statements.

The plaintiffs next argue that the trial justice erred in failing to exclude the

entirety of Mr. Trecaso’s deposition because Star never made a showing of Mr.

Trecaso’s unavailability to testify in person. The plaintiffs’ argument is advanced

for the first time before this Court, however, and is therefore waived. Cappuccilli v.

Carcieri, 174 A.3d 722, 733 (R.I. 2017) (“The raise-or-waive rule precludes a

- 11 -
litigant from arguing an issue on appeal that has not been articulated at trial.”)

(quoting Thornley v. Community College of Rhode Island, 107 A.3d 296, 302 (R.I.

2014)). In the Superior Court, plaintiffs argued that Mr. Trecaso’s deposition should

be excluded in its entirety because the Superior Court lacked personal jurisdiction

over Mr. Trecaso because he had been dismissed from the case with prejudice. In

advancing that argument, plaintiffs conceded that “Mr. Trecaso is not an ‘out of state

witness’ for purposes of Rule 32 unavailability, but rather, somebody who the Court

has no personal jurisdiction over * * *.” Having made that argument, however,

plaintiffs are barred from raising Rule 32 in this Court as a means to argue that Mr.

Trecaso’s deposition should have been excluded in its entirety. See E.T. Investments,

LLC v. Riley, 262 A.3d 673, 676 (R.I. 2021) (restricting appellant’s ability to

advance a new theory on an issue when that theory was not presented before trial

court).

Finally, plaintiffs contend that the trial justice erred in permitting defendant

to rely on Mr. Trecaso’s deposition and police statement to argue that Julie crossed

into Mr. Trecaso’s lane of travel. Prior to trial, plaintiffs filed a motion in limine

seeking to prevent defendant from using Mr. Trecaso’s deposition to establish that

Julie crossed lanes because Mr. Trecaso did not see Julie drive into his truck. A

justice of the Superior Court denied plaintiffs’ motion on the grounds that plaintiffs

did not cite any rule of evidence or legal authority that barred its admission, and

- 12 -
because he concluded that plaintiffs’ argument goes to the weight of the statements

in Mr. Trecaso’s deposition rather than their admissibility. On appeal, plaintiffs add

that defendant also should not have been permitted to rely on Mr. Trecaso’s written

police report statement that Julie drove into his truck.

We perceive no abuse of discretion as to the trial justice’s decision to admit

either the deposition or the police report because at no point during this litigation

have plaintiffs identified any rule of evidence that would block the statements from

being admitted. Rather than substantively challenge its admissibility, plaintiffs have

consistently asserted that defendant should not have been allowed to rely on the

statements and police report because Mr. Trecaso admitted that he did not see Julie

drive into his truck. As the trial justice noted, however, that argument poses a

question for the jury as to the weight that ought to be given to Mr. Trecaso’s

description of events. Accordingly, we conclude that the evidence was properly

admitted, and the trial justice did not abuse his discretion in doing so.

Trooper Hanley

The plaintiffs make several arguments before this Court pertaining to Trooper

Hanley’s testimony. We will address each in turn.

First, plaintiffs allege that Trooper Hanley’s police report should not have

been allowed into evidence because it contained her own narrative as well as Mr.

Trecaso’s written assumption about how the accident occurred. Based on our review

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of the record, plaintiffs failed to adequately preserve this argument for appeal. At a

pretrial hearing, plaintiffs’ counsel withdrew the objection to the police report.

Puzzlingly, however, when defendant sought to publish the police report to the jury,

plaintiffs’ counsel asserted that plaintiffs had “reserved at pre-trial [their] objections

* * * regarding the police report.” Our review of the record, however, reveals that

plaintiffs had not “reserve[d]” any objection to the police report during pretrial

hearings; rather, plaintiffs affirmatively indicated that the objection was withdrawn.

Our well-settled raise or waive rule prevents us from addressing arguments not

raised before the trial justice in the first instance. See E.T. Investments, LLC, 262

A.3d at 676. Here, plaintiffs’ failure to press the objection at trial on any ground

other than the one already abandoned compels us to conclude that that argument is

waived. Id.

Second, plaintiffs argue that the trial justice abused his discretion in

permitting Trooper Hanley to testify to Julie’s credibility. This argument is also

waived. During Trooper Hanley’s testimony, Star’s counsel asked Trooper Hanley

“what information [she] * * * gather[ed] from the parties that led [her] to indicate

that Mr. Trecaso could not have been entering the on-ramp at Exit 15[.]” The

plaintiffs’ sole objection to that question was that it was “leading.” The plaintiffs

did not assert any additional basis for their objection either at trial or in their motion

for a new trial. Before this Court, however, they argue that that question sought to

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have Trooper Hanley testify as to Julie’s credibility. The plaintiffs never raised the

argument that defense counsel’s question required Trooper Hanley to opine on

Julie’s credibility before the trial justice, and therefore their argument is waived. See

Cappuccilli, 174 A.3d at 733.

Third, plaintiffs argue that the trial justice erred in admitting Google Earth

aerial photographs of the area of Interstate 95 where the accident occurred in 2010

because Trooper Hanley “[l]acked the [k]nowledge” to authenticate those

photographs. The trial justice addressed plaintiffs’ argument about the photographs

at trial. When Trooper Hanley took the stand, Star’s counsel asked whether aerial

photographs produced by defendant were accurate representations of the section of

Interstate 95 where the accident occurred; she responded that they were. The

plaintiffs’ counsel then objected on the grounds that the foundation had not been laid

to establish Trooper Hanley’s actual knowledge regarding the portion of Interstate

95 South where the accident occurred. Star’s attorney subsequently asked additional

questions to establish her knowledge and thereafter sought to admit the exhibits in

full. At that point, plaintiffs’ counsel objected on the grounds that the photograph

had not been authenticated and requested to conduct a voir dire of Trooper Hanley.

During voir dire, Trooper Hanley confirmed that she had “driven 95 South

numerous times.” She also testified that she viewed the highway from above the

ground while flying into T.F. Green Airport “about twenty times.” She testified

- 15 -
upon further questioning, however, that she did not recall the path of her flights into

the airport and she could not recall whether her flight flew directly over “the 95

South area where Exit 15 and Exit 14 are located[.]” The plaintiffs’ counsel did not

ask any further questions, the photographs were admitted in full, and plaintiffs’

counsel did not restate his objection to the introduction of the photographs.

On this record, we cannot conclude that the trial justice abused his discretion

in admitting the aerial photographs. “The burden of proof for authentication * * *

is * * * slight.” O’Connor v. Newport Hospital, 111 A.3d 317, 323 (R.I. 2015)

(brackets omitted) (quoting United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir.

1994)). The trial justice need only be satisfied that “there is enough support in the

record to conclude that it is reasonably probable that the evidence is what its offeror

proclaims it to be.” Id. (brackets omitted) (quoting State v. Oliveira, 774 A.2d 893,

926 (R.I. 2001)). Trooper Hanley testified that she was familiar with the Interstate

95 interchange, that the photographs were “true and accurate representations * * *

of Google Earth as it existed in 2010,” that the interchange’s layout had not changed

from 2010 to 2013, and, during a voir dire by plaintiffs’ counsel, she stated that she

had driven on Interstate 95 many times and had seen Interstate 95 from an airplane

while flying into T.F. Green Airport. Based on this evidence, we conclude that the

trial justice did not abuse his discretion in concluding that Trooper Hanley could

- 16 -
authenticate that the aerial photographs were what Star’s attorney claimed them to

be. See id.

Nevertheless, plaintiffs argue that Trooper Hanley was not a sufficient witness

to authenticate computer-generated photographs because she was not a forensic

scientist, citing United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012), and

Odom v. State, 383 So. 3d 322 (Miss. Ct. App. 2023). Those cases are inapposite.

In Espinal-Almeida, the United States Court of Appeals for the First Circuit upheld

a trial judge’s admission of an edited aerial photograph that depicted a defendant’s

travel patterns where that evidence was derived from GPS data and where an expert

was not present to testify to the authenticity of the underlying data upon which the

map was based. Espinal-Almeida, 699 F.3d at 609-13. In Odom, Mississippi’s

intermediate appellate court held that a Google satellite image that had been edited

to reflect the location of a car based on location data pulled from a third-party’s

corporate software was not properly authenticated because no effort had been made

to authenticate the underlying data used to create the edited image and the testifying

law enforcement officer was not qualified to do so. Odom, 383 So. 3d at 330-31.

However, the Odom court nonetheless determined that the error was harmless. Id. at

331.

Both of those cases concern significantly more complex evidence than the

evidence at issue in the instant case and only one of them, Odom, held that the

- 17 -
testimony of the particular law enforcement officer who testified in that case could

not authenticate the computer-generated image challenged on appeal. Odom, 383 So.

3d at 331. Moreover, unlike in both Espinal-Almeida and Odom, plaintiffs here

object to the introduction of a bare, unedited photograph of a portion of a highway.

To be sure, the photographs, like those in the other cases, were pulled from the

Internet, but notably, defense counsel represented at trial that the photographs were

“from April 30, 2010,” in response to which plaintiffs’ counsel presented no

objection, and Trooper Hanley testified that they accurately depicted the interstate

as of that date. Our review of the record reveals that Trooper Hanley was qualified

to testify to what the photographs depicted. We therefore discern no abuse of

discretion in the trial justice’s decision to admit the photographs as accurate

representations of Interstate 95 South.

The plaintiffs next argue that Trooper Hanley should not have been allowed

to interpret the Google Earth images once admitted because that required expert

testimony. The plaintiffs first object to the following question posed by defense

counsel: whether, “to [Trooper Hanley’s] knowledge, * * * the configuration of the

interstate, the location of the exits, the on-ramps and the off ramps changed from

2010 to 2013.” The plaintiffs’ argument as to that question is waived, however.

Although plaintiffs objected to the question when it was asked, and stated as grounds

for that objection that Trooper Hanley was not qualified to give an expert opinion

- 18 -
on the configuration of the highway, the question was subsequently withdrawn. The

plaintiffs next object to defendants’ subsequent question which asked Trooper

Hanley whether the aerial photographs were “true and accurate representations * * *

of Google Earth as it existed in 2010?” The plaintiffs objected at trial on the basis

that defendants had not established that Trooper Hanley possessed the expert

knowledge necessary to answer questions regarding the configuration of the

highway; on appeal, they argue that Trooper Hanley’s testimony about the

geographic location of the images required specialized knowledge. We observe no

abuse of discretion in the trial justice’s decision to overrule plaintiffs’ objection,

however, because defendant’s question did not seek to elicit expert testimony; rather,

it only sought testimony as to Trooper Hanley’s personal knowledge of the

highway’s layout at the time of the accident.4 Accordingly, we discern no abuse of

discretion in the trial justice’s decision to admit Trooper Hanley’s testimony

regarding the Google Earth images.

The plaintiffs also argue that Trooper Hanley should not have been allowed

to give an opinion on who caused the accident. Specifically, plaintiffs identify errors

in the trial justice’s decision to overrule their objection to three questions asked of

4
We additionally observe that, just two pages earlier in the transcript, defendant
asked a nearly identical question regarding whether the photographs accurately
depicted the highway at the time of the accident. Trooper Hanley responded that
they appeared to, and plaintiffs did not object.
- 19 -
Trooper Hanley. The first question asked, “Does the accident report state that the

plaintiffs’ vehicle was in the process of changing lanes prior to impact?” On appeal,

plaintiffs contend that this question called for Trooper Hanley’s expert opinion. Our

review of the entire transcript, however, satisfies us that defense counsel was not

calling for Trooper Hanley to offer any “specialized knowledge” about the accident

that would require expert testimony. R.I. R. Evid. 702. Rather, the question only

asked her to read what was contained in her accident report which, at that point in

the trial, had already been admitted as a full exhibit. Therefore, the trial justice did

not err in overruling plaintiffs’ objection.

The second question asked: “Does the 911 call, when the vehicle -- the truck

flipped on the vehicle, does that influence any of the findings in the accident report?”

Both plaintiffs’ counsel and Julie’s counterclaim counsel objected to the question on

different grounds, and the trial justice sustained Julie’s counterclaim counsel’s

objection. Because the trial justice sustained one of the objections to that question,

plaintiffs cannot now appeal the trial justice’s denial of their objection; the trial

justice sustained one of the objections, and there is therefore nothing left for this

Court to review. See State v. Gautier, 950 A.2d 400, 413 (R.I. 2008) (declining to

address issue where appealing party’s objection was sustained at trial).

Finally, plaintiffs argue that the trial justice erroneously overruled their

objection to the following question:

- 20 -
“Q: Trooper Hanley, as part of your accident report, did
you note in your accident report anywhere that Mr.
Trecaso was a contributing factor to this accident?”

The plaintiffs’ counsel and counterclaim counsel objected on the grounds that the

question called for expert opinion. Once again, we disagree. The question calls for

Trooper Hanley to look at her accident report (which was admitted as a full exhibit)

and tell the jury what it contained. Therefore, we conclude that the trial justice did

not abuse his discretion in failing to sustain plaintiffs’ objection to that question.

Opening Remarks and Closing Argument

The plaintiffs argue that the trial justice erred in overruling their objections to

defense counsel’s statements during his opening remarks and closing argument.

When reviewing an allegation of error during opening remarks and closing

argument, this Court recognizes that counsel enjoys “the privilege of engaging in all

fair comment on behalf of his or her client.” Baker v. Women & Infants Hospital of

Rhode Island, 268 A.3d 1165, 1169 (R.I. 2022) (brackets omitted) (quoting Norlin

Music, Inc. v. Keyboard “88” Inc., of Warwick, 425 A.2d 74, 75-76 (R.I. 1981)).

“[T]he proper function of an opening statement is to apprise the jury with reasonable

succinctness what the issues are in the case that is about to be heard and what

evidence the [plaintiff] and the defense expect to produce at trial in support of their

respective positions.” Avarista v. Aloisio, 672 A.2d 887, 892 (R.I. 1996) (quoting

State v. Byrnes, 433 A.2d 658, 664 (R.I. 1981)). Statements made during opening

- 21 -
remarks are impermissible when they “attempt[] to appeal solely to the prejudice

and passion in the minds of the jurors, thereby diverting their minds from the case

at issue.” Baker, 268 A.3d at 1169 (quoting Norlin Music, Inc., 425 A.2d at 75-76).

However, this Court will not overturn a verdict unless it appears that the verdict was

influenced by the statement and where there was no curative instruction. Id.

In his opening remarks, defense counsel noted that Julie and Maxine would

testify that Mr. Trecaso entered the highway from the Jefferson Boulevard on-ramp,

but that “all of the facts in the case, including where the trooper found the car, the

location of the car, and all of the other testimony proves it is physically impossible

for the accident to happen in the way that the plaintiffs say it happened. Simply

because Mr. Trecaso was not coming on the on-ramp, the accident happened * * *

North of Exit 15.” The plaintiffs argue on appeal that defense counsel should not

have been permitted to make the statements about the accident’s physical

impossibility because that assertion is “baseless.” In our review of the record,

however, defense counsel’s statement permissibly alluded to the evidence it

expected to—and ultimately did—produce in support of its position that plaintiffs’

version of events was impossible; accordingly, we perceive no error in his having

alluded to that evidence in his opening statement. See Avarista, 672 A.2d at 892.

Likewise, during closing argument defense counsel asserted that “[i]t is

physically impossible for the accident to happen the way [the plaintiffs] described”

- 22 -
because “[f]or the accident to happen in the way that they say it happened, Greg

Trecaso has to be coming on the Exit 15 on-ramp. But her car is somehow found

200 feet north of Exit 15.” We have consistently held that parties retain

“considerable latitude in closing argument, as long as the statements pertain only to

the evidence presented and represent reasonable inferences from the record.” State

v. Boillard, 789 A.2d 881, 885 (R.I. 2002). Here, defendant connected its argument

regarding impossibility of plaintiffs’ version of events to the specific evidence

Trooper Hanley provided regarding the location of Julie’s car at the time she came

to the scene. Accordingly, we perceive no error in allowing that statement.

Finally, any possible error in defense counsel’s opening remarks or closing

argument was mitigated by the trial justice’s comprehensive instructions telling

jurors that those statements were not evidence and could not be considered as such.

We assume the jury followed the instructions and, therefore, do not conclude that

the brief and permissible mentions of physical impossibility prejudiced plaintiffs in

any way. See Brunswick Corporation v. Sposato, 120 R.I. 673, 676, 389 A.2d 1251,

1253 (1978).

The plaintiffs further argue that the trial justice erred by overruling their

objection to defense counsel’s statement during closing argument wherein he

asserted that plaintiffs’ counsel and Julie’s counterclaim counsel “attacked” and

“besmirch[ed]” Trooper Hanley on the stand. The plaintiffs argue that those remarks

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were “intended to goad and fire up the all-female Jury * * *.” The trial justice

overruled plaintiffs’ objection at trial, and we conclude that he was correct to do so.

A statement at closing argument is improper when it is “totally extraneous to the

issues in the case and tend[s] to inflame and arouse the passions of the jury.”

Boillard, 789 A.2d at 885 (quoting State v. Mancini, 108 R.I. 261, 273-74, 274 A.2d

742, 748 (1971)). Here, the evidence submitted to the jury about the cause of the

accident was derived from the statements of five witnesses: Julie, Maxine, Mr.

Trecaso, an anonymous 911-caller, and Trooper Hanley. Trooper Hanley’s

credibility and plaintiffs’ efforts to undermine that credibility during

cross-examination were therefore not “extraneous to the issues in the case” but rather

appropriate subjects of closing argument. Id. (quoting Mancini, 108 R.I. at 273-74,

274 A.2d at 748). Moreover, defense counsel’s remarks accurately described

plaintiffs’ attorney’s pointed cross-examination of Trooper Hanley during which he

suggested that Trooper Hanley had not effectively dispatched her investigative

duties. We therefore conclude that the trial justice did not err in overruling plaintiffs’

objection to these statements.

Jury Instructions

The plaintiffs next argue that the trial justice erred in giving an expert witness

instruction that was misleading because neither party introduced any experts. The

plaintiffs’ attorney raised the same objection before the trial justice, who overruled

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the objection on the grounds that plaintiffs had introduced medical record evidence

that warranted an expert witness instruction. “[T]his Court examines jury

instructions ‘in their entirety to ascertain the manner in which a jury of ordinarily

intelligent lay people would have understood them.’” Botelho v. Caster’s Inc., 970

A.2d 541, 545 (R.I. 2009) (quoting Parrella v. Bowling, 796 A.2d 1091, 1101 (R.I.

2002)). “An erroneous charge warrants reversal only if it can be shown that the jury

could have been misled to the resultant prejudice of the complaining party.”

Mandros v. Prescod, 948 A.2d 304, 310 (R.I. 2008) (quoting State v. Sivo, 925 A.2d

901, 913 (R.I. 2007)). After conducting our required review of the instructions in

the instant case, we perceive no error.

The trial justice’s instructions included only one reference to expert

testimony. There, the trial justice informed the jury that “[o]rdinarily, the law does

not permit a witness to testify about his or her opinions or conclusions,” but that an

expert witness is a person who has developed expertise

“and, as a result, is permitted to give his or her opinion
about matters in which they are experts. * * * For any
expert testimony to be admitted in this case, you will be
required to assess the credibility of their testimony and to
determine how much weight, if any, you give to it.”

The plaintiffs argue that the trial justice’s instructions led the jury to believe

that Trooper Hanley was an expert and misled them to believe that they, rather than

the trial justice, were to determine whether Trooper Hanley’s testimony was

- 25 -
admissible. The jury instructions do not reference Trooper Hanley directly,

however; nor do they state that any particular testimony offered by either party

should be viewed by the jury as expert testimony. Accordingly, we cannot conclude

that a reasonably intelligent juror would understand the trial justice’s general

reference to expert testimony to have referred directly to Trooper Hanley, nor do we

think it caused prejudice to plaintiffs. See Botelho, 970 A.2d at 545. Moreover, even

if the instructions led a juror to believe that Trooper Hanley had provided expert

testimony, the instructions further directed the jurors that they were “required to

assess [her] credibility * * * and to determine how much weight, if any, [to] give to

it.” We discern no error in the trial justice’s instruction, which accurately informed

the jurors of their charge to independently assess all the evidence before them.

Verdict Sheet

The plaintiffs also object to language contained in the verdict sheet. The

plaintiffs object to the first question on the verdict sheet which asked the jurors: “Do

you find that Julie DeOliveira proved, by a fair preponderance of the evidence, that

the Star Insurance Company (Mr. Trecasso [sic]) was negligent in causing her

injuries?” The plaintiffs argue that the trial justice erred when he refused to insert

the words “had any negligence” in place of “was negligent” in order to signal to the

jury that they need not find defendant one hundred percent liable in order to find in

plaintiffs’ favor. The trial justice overruled plaintiffs’ objection at trial upon

- 26 -
concluding that “the question makes no inference one way or another as to whether

or not they have to prove 100 percent negligence or any negligence. But the

instructions do. * * * I also note that Question No. 3 and Question No. 6 require a

division of negligence according to percentages. So something smaller than 100

percent would be appropriate.” We agree.

Reviewing the verdict sheet in its entirety, we conclude that there was no

error. See Mangiarelli v. Town of Johnston, 289 A.3d 560, 566-67 (R.I. 2023). The

verdict form required the jurors to go through three steps. First, it informed the

jurors that if they found that Star was negligent, they should proceed to the second

question, which asked if defendant was also the proximate cause of Julie’s injuries.5

If the jury answered that question in the affirmative, the form instructed the jury to

proceed to question three, which asked the jury to proportion the degree of

negligence attributable to each driver. Viewed in its entirety, the verdict form

addressed plaintiffs’ concerns that Star need not be found one hundred percent liable

in order for plaintiffs to recover. Indeed, even if the members of the jury believed

that Star was negligent and believed that Mr. Trecaso was the proximate cause of

plaintiffs’ injuries, they still were provided the opportunity to apportion fault

however they saw fit, including finding that defendant was less than one hundred

percent liable. Therefore, there is no reason to assume that the omission of “had any

5
Questions five through eight posed the same questions as to Maxine.
- 27 -
negligence” from question one misled the jury into believing that defendant had to

be one hundred percent negligent in order for plaintiffs to receive any award of

damages. Accordingly, we conclude that an ordinarily intelligent juror would not

be misled by the verdict sheet’s contents, and we affirm the decision of the trial

justice declining to adopt plaintiffs’ preferred wording. See Mangiarelli, 289 A.3d

at 566-67.

Empty Chair Doctrine

The plaintiffs next argue that the trial justice erroneously overruled their

objection to a statement made by defense counsel in closing argument and further

erred by failing to give a cautionary instruction in light of that objection. In his

closing argument, defense counsel stated that plaintiffs “could have gotten any of

their experts to come in and say that Greg Trecaso was negligent. They didn’t. They

had the burden of proof. They called no experts.” The plaintiffs objected at trial;

that objection was overruled. We perceive no error with the trial justice’s decision

to overrule plaintiffs’ objection.

As an initial matter, plaintiffs’ argument that the trial justice erred in failing

to provide a cautionary instruction to the jury in light of defense counsel’s statements

must fail because they did not request a cautionary instruction from the trial justice

before the jury retired. See Boillard, 789 A.2d at 883 (“We have held that ordinarily

a defendant must request a cautionary jury instruction or a mistrial in order to

- 28 -
preserve for review an objection raised during closing arguments.”); see Super. R.

Civ. P. 51(b).

The plaintiffs did timely object to the allegedly impermissible statement

during closing; therefore, we will address the trial justice’s decision to overrule that

objection. The empty chair doctrine permits a factfinder to draw an adverse

inference from “a litigant’s unexplained failure to produce an available witness who

would be expected to give material testimony [o]n the litigant’s behalf.” Retirement

Board of Employees’ Retirement System of State v. DiPrete, 845 A.2d 270, 294 (R.I.

2004) (quoting Belanger v. Cross, 488 A.2d 410, 412-13 (R.I. 1985)). Before such

an inference may be drawn, however, “it must be demonstrated that the missing

witness was available to the person who would be expected to call the witness.” Id.

In deciding plaintiffs’ motion for a new trial, the trial justice concluded that the

empty chair doctrine was not implicated by defense counsel’s closing argument

because “it was not a violation for the defendant to talk about the burden of proof

being on the plaintiff, who has the burden of proof * * *.” We agree, and further

conclude that the empty chair doctrine was not implicated by defendant’s statement

that plaintiffs “had the burden of proof” but “called no experts” because the empty

chair doctrine permits such an inference only where the parties establish that a party

had an available witness that they neglected to call. See Retirement Board of

Employees’ Retirement System of State, 845 A.2d at 294. Here, however, there is no

- 29 -
evidence that plaintiffs possessed a witness that they failed to call, or that defendant

sought to gain a beneficial adverse inference from the plaintiffs’ failure to call that

witness. Id. Thus, we conclude, that the empty chair doctrine has not been violated.

Motion for A New Trial

We review a trial justice’s decision on a motion for a new trial with deference.

Dextraze v. Bernard, 253 A.3d 411, 416 (R.I. 2021). Accordingly, we will “affirm

a trial justice’s decision on a motion for a new trial as long as the trial justice

conducts the appropriate analysis, does not overlook or misconceive material

evidence, and is not otherwise clearly wrong.” Kazarian v. New London County

Mutual Insurance Company, 331 A.3d 984, 991 (R.I. 2025) (quoting Zarembka v.

Whelan, 176 A.3d 485, 487-88 (R.I. 2018)).

The plaintiffs challenge the trial justice’s decision to deny their motion for a

new trial because, they argue, the jury’s conclusion “defies reason, logic and

common sense” and is against the fair preponderance of the evidence. The plaintiffs

point to the introduction of the 911 call in which the caller described seeing Mr.

Trecaso’s truck “smash into the White Car” to argue that Mr. Trecaso’s contrary

testimony should not have been believed and, therefore, the jury should have reached

a different verdict.

Our review of the trial justice’s decision reveals that he accurately stated the

standard applicable to a motion for a new trial, thoroughly evaluated the evidence

- 30 -
presented at trial, articulated his credibility determinations, and ultimately conducted

the proper analysis. He noted that neither Julie nor Maxine were credible given

Julie’s inconsistent statements and elusive answers to questions, and Julie and

Maxine’s denial of their shared history of interpersonal tension. The trial justice

acknowledged that Mr. Trecaso did not testify that he witnessed Julie leave her lane

and make contact with his truck, but rather that he testified that he saw Julie with

her blinker on as if she was preparing to take an exit. The trial justice further

acknowledged the 911 call played for the jury, but found that it was of “limited”

value because it was from an unidentified caller and contained the statement, “I don’t

know really what happened” casting doubt on the reliability of the speaker. After

conducting his analysis, the trial justice determined “the only possible proof of

negligence, if any, is this 911 caller,” which did “not add up to reliable proof by even

a mere preponderance of the evidence.” He consequently denied the plaintiffs’

motion for a new trial. Because it is clear to us that the trial justice applied the

appropriate standard, conducted the correct analysis, and did not otherwise clearly

err, we affirm his decision denying the plaintiffs’ motion for a new trial.

Conclusion

Based on our assessment of the arguments presented in the plaintiffs’ appeal,

we affirm the trial justice’s decision on the plaintiffs’ motion for a new trial and

reject all of the plaintiffs’ specific claims of error. Because we so conclude, we

- 31 -
decline to address the defendant’s cross-appeal. Therefore, we affirm the judgment

in favor of the defendant and remand the papers to the Superior Court.

Justice Goldberg participated in the decision but retired prior to its

publication.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Julie DeOliveira et al. v. Greg Trecaso et al.

No. 2024-66-Appeal.
Case Number No. 2024-72-Appeal.
(PC 12-1012)

Date Opinion Filed June 3, 2026

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Melissa A. Long

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear

For Plaintiffs:

Charles N. Garabedian, Esq.
Attorney(s) on Appeal
For Defendant:

Todd J. Romano, Esq.

SU-CMS-02A (revised November 2022)