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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS, ESSEX SUPERIOR COURT
C.A.NO.: 1877CV01635
ELSA ACEVEDO DE MARTINEZ,
Plaintiff,
“Ve
RECEIVED
LORENZO RAMOS FUENTES 5/10/2021
Defendant.
JOINT PRETRIAL MEMORANDUM
1 Plaintiff's FACTS
This is a civil action arising out of a slip and fall accident which occurred on February 8,
2017 on the sidewalk in front of 26 Woodman Street, Lynn, Massachusetts. At said date
and time Defendant Lorenzo Ramos Fuentes owned and controlled the property at the
Premises (“Premises”). On December 24, 2016, Elsa Acevedo De Martinez suffered
injuries as a result ofa slip and fall.
DEFENDANT'S FACTS
The Defendant has an ownership interest and ownership responsibility for the premises at
26 Woodman Street, Lynn, Massachusetts, The alleged accident occurred on the sidewalk
in front of 26 Woodman Street, Lynn, Massachusetts.
PLAINTIFF'S STATEMENT
Plaintiff Elsa Acevedo De Martinez expects the evidence will show that she suffered severe
injuries, including a right rotator cuff tear, which required a surgery, and that her injuries
were the result of a slip and fall which occurred on February 8, 2017, at the Premises,
Plaintiff also expects the evidence to show that the Defendant was responsible for the
property located at 26 Woodman Street, Lynn, Massachusetts and that Defendant was
negligent in creating a snowbank in his driveway and did not salt/sand the sidewalk as a
preventative measure for any melting snow.
DEFENDANT'S STATEMENT
The Defendant did not breach any duty that proximately produced injury to the Plaintiff.
Inthe event that there is a finding of negligence, evidence presented will establish that the
Plaintiffs own negligence accounted for any injuries sustained.
DESCRIPTION OF THE CASE
This is a civil action arising out of an accident which occurred on February 8, 2017, at the
property owned, controlled or maintained by the defendant in Lynn, Massachusetts. The
plaintiff alleges she was injured on the premises as a result of the defendant’s negligence.
The plaintiff now seeks monetary compensation for her injuries. The defendant denies he
was negligent in his maintenance of the property.
DEFENDANT’S DESCRIPTION OF CASE
This is a civil action arising out of an accident which Plaintiff claims occurred on February
8, 2017, at the property owned, controlled or maintained by the Defendant in Lynn,
Massachusetts. The defendant denies that the accident occurred as claimed and contests
the cause and scope of damages alleged.
SIGNIFICANT LEGAL ISSUES
Whether The Article 15 Jury Trial Right With The Chapter 234 Provision for a 5/6
Verdict Precludes the Use of a non-Unanimous Six Person Jury, and 2) Whether Civil
Matters Reserved for the Superior Court Entitle a Defendantto a Twelve Person Jury
Under the Jury Right Specified in the Massachusetts Constitution
2. Whether The Article 15 Jury Trial Right With The Chapter 234 Provision for a 5/6
Verdict Precludes the Use of a non-Unanimous Six Person Jury
Article XV provides in civil cases the procedure of the jury trial right shall be held “sacred”,
In Dalis v. Buyer Advertising, Inc., 418 Mass 220 (1994) the Court elaborated that “the
jury system, as the “sacred” method for resolving factual disputes, is the most important
means by which laypersons can participate in and understand the legal system. Dalis v.
Buyer Advert., Inc.,418 Mass. 220, 222, 636 N.E.2d 212, 214 (1994) It brings the “rules
of law to the touchstone of contemporary common sense.” Id., quoting 1 W. Holdsworth,
A History of English Law 348-349 (3d ed. 1922). “Jurors bring to a case their common
sense and community values; their ‘very inexperience is an asset because it secures a fresh
perception of each trial, avoiding the stereotypes said to infect the judicial eye.’ ” Dalis v.
Buyer Advertising, Inc., 418 Mass 220 (1994) citing Parklane Hosiery Co. v. Shore, 439
U.S. 322, 355, 99 S.Ct. 645, 664, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting),
quoting H. Kalven & H. Zeisel, The American Jury 8 (1966M.G.L.A. Const. Pt. 1, Art.
15.Jamgochian v. Dierker, 425 Mass. 565, 681 N.E.2d 1180 (1997)
In Burch v State of Louisiana, 441 US 130 (1979), United States Supreme Court
determined that a statute permitting a criminal conviction by a non-unanimous six person
Jury violates the right toa jury trial guaranteed by the sixth and the fourteenth amendments,
Id at 134-139. In so holding, the court stated “we believe that conviction by a
nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an
accused of his constitutional right to trial by jury.” Burch at 134. The Court pointed out
that non-unanimity is allowed in non-capital cases with twelve jurors, but that non-
unanimity was not permissible in non-petty cases, as such an approach threatened the jury’s
role in serving as a check on the government and a compliant or eccentric judge. It also
threatened group deliberation that includes a fair cross. section of the community and helps
insulate juries from intimidation. Id. A recent letter from the Justices of the Supreme
Judicial Court about the need to promote racial equity in the Courts further supports the
importance of rejecting efforts to shrink the jury size despite Article XV, insofar at least
that larger juries tend to elevate the chance for including jurors of more diverse racial
background. Letter from the Seven Justices of the Supreme Judicial Court to Members of
the Judiciary and the Bar (June 3, 2020) accessible at https://www.mass.gov/news/letter-
from-the-seven-justices-of-the-supreme-judicial-court -to-members-of-the-jud iciary-and.;
Moore and Panken, Jury Size: Less Is Not More, accessible at courses?2.cit.cornell.edu.
Massachusetts requires that a civil jury be instructed that 5/6 votes of a jury panel is
sufficient to establish a verdict. Chapter 234A sec 68B (providing “In any civil action the
jury shall be instructed that the agreement of 5/6 of its members shall be sufficient torender
any special or general verdict”.) The defense here submits the six person jury, with the
requirement of a 5/6 verdict, as in Burch v. State of Louisiana 441 US 130 (1979), violates
the trial right guaranteed by Article XV of the Massachusetts constitution.
3. Whether Civil Matters Reserved for the Superior Court Entitle a Defendant to a Twelve
Person Jury Under the Jury Right Specified in the Massachusetts Constitution
Notwithstanding the nonbinding advisory opinion of the Supreme Judicial Court
that a unanimous six person jury complies with the Article XV jury trial right in a less
serious case, the requesting party here submits that a six person jury as opposed to a twelve
person jury violates the Article XV jury trial right for civil cases in matters reserved
for
Superior Court by monetary significance.
The jury size for civil and criminal trials had become fixed at twelve in the fourteenth
century. Williams v. Florida, 399 US 78, 89 (1970). Between 1780 and 1980 neither
criminal nor civil litigants were required to accept a jury less than 12 persons.
Opinion of
the Justices, 360 Mass. 877, 886-887, (1971)(Quirico Dissenting). In more recent years,
six person juries have been employed in some Massachusetts district courts, based on
Williams v. Florida, 399 US 78 (1970)type analysis that 6 is allowable for non-infamous
crimes, Opinion of the Justices, 360 Mass. 877(1971) accessible at
hitp://masscases.com/cases/sjc/360/360mass877.html. While entertaining whether the
legislature might require criminal defendants to accept six person juries for
less serious
cases, the Supreme Judicial Court issued an advisory opinion on whether such a jury met
constitutional muster. Id. The Court, in response, carefully noted that its opinion did not
addresstrials “for the more serious crimes or in any case where the defendant in fact maybe
exposed to a State prison sentence” and opined that the 6 person jury was thus appropriate
for offenses not involving “infamous punishment”. Opinion of the Justices, 360
Mass. 877
at 885 (1971) Justice Quirico dissented from even allowing a reduction in the number of
jurors for a non-petty crime. Opinion of the Justices, 360 Mass. 877 at 886 (1971) He
stressed that precedent requires preservation of the jury trial, and maintained that reduction
in the number of jurors should only be done afteran appropriate constitutional amendment.
Id at 887.
Williams v. Florida, 399 US 78 (1970) and Burch v. State of Louisiana, 441 US 130 (1979)
support the position of the Defendant here that civil cases deemed appropriate for Superior
Court (no reasonable likelihood that recovery by the Plaintiff will be less than or equal to
$50,000, see MGL ch. 212, sect 3 and Order of Supreme Judicial Court 17 July 2019)
entitle parties in the cases to a twelve person jury under Article XV. The Defendant here
submits that Superior Court trials of more serious matters, reserved for the Superior Court
as opposed to the District Court, trigger entitlement to the twelve person jury rooted in
common law. This appears to accord with the communication of the jury management
advisory committee that recommended suspension of the twelve person jury based on
pandemic circumstances. Indeed,
the jury management advisory committee noted, “there
is a long standing common law tradition of twelve person juries for both civil and criminal
cases in the Superior Court.” Jury Management Advisory Committee Report at 29,
accessible at _https://www.mass.gov/info-details/ /jury-management-ad visory-committee-
report-and-recommendations-on-the-resumption-of, citing footnote 42, Opinion of the
Justices, 360 Mass. 877, 886-887 (1971)(Quirico Dissenting) and see G.L.c. 234A sect. 68
referencing twelve person juries. As the elements in the method of jury trial tending to
protect the citizen against arbitrary power must be preserved, and the court stated
“whatever tends in any appreciable degree to impair the essentials of the right must be
struck down”. Opinion of the Justices, 360 Mass. 877 (1971) at 885.
The Covid-19 pandemic circumstances cannot serve as the foundation to diminish the
Article XV jury trial right upheld for centuries by common law practice
The Covid-19 pandemic circumstances cannot serve as the foundation to diminish
the Article XV jury trial right upheld for centuries by common law practice. The Supreme
Judicial Court Order of September 17, 2020, requires use of a six person jury in Superior
Court. SJC Order accessible at https:/vww.mass.gov/supreme-judicial-court-
rules/supreme-judicial-court-fourth-updated-order-regard ing-court-operations, That Order
appeared to arise from adoption of an observation from the Advisory Committee Report
and Recommendation on Jury Management, Report and Recommendations. Report at p.
29 July 31, 2020) accessible at http: https://www.mass.gov/info-details/jury-management-
ad visory-committee-report-and -recommendations~on-the-resumption-of, The report
asserted that the pandemic warranted a Court ordered reduction in jury size. Id at 28-29.
The Report noted Arizona had done something similar but failed to advancea legal analysis
for what appears to be a court ordered suspension of a jury trial right. Id. Two recent
tulings from the Federal District Court in Boston on whether the pandemic warrants
suspension of constitutional rights show the sharp limits on the permissibility of using the
pandemic to suspend constitutional rights and support the position that the pandemic
circumstance does not allow erosion of the jury trial right. In the first case, ACA
International v. Maura Healey, C.A. No 20-10767-RGS, (May 2020) debt collectors
asserted that an emergency regulation in Massachusetts prohibiting specified calls to
consumers and associated activities improperly abridged their constitutional rights to free
expression and sought a temporary restraining order effectively nullifying the regulation.
Id at 5. In holding for the debt collectors, Judge Stearns stated “constitutional rights do not
take a holiday simply because governing authorities declare an emergency” Id. at footnote
9. In rendering his decision, Judge Stearns relied on Home Building & Loan Assoc. v.
Blaisdell, 290 U.S. 398 (1934) at 416, which Judge Steams noted stated an a) “emergency
does not create power. Emergency does not increase granted power or remove or diminish
the restrictions imposed upon power granted or reserved.” and b), in Blaisdell, the United
State Supreme Court opined, “Constitutions cannot be changed by events alone. They
remain binding as the acts of the people in their sovereign capacity,...until they are
amended or abrogated by the action prescribed by the authority which created them. It is
not completent (sic) ...to change a constitution, or declare it changed, simply because it
appears ill adapted to a new state of things.” Id at 425. Judge Stearns rejected the Attorney
General’s argument that shielding consumers from debt collection, protecting residential
tranquility and preserving citizen financial wellbeing during the pandemic warranted the
regulation. ACA International v. Maura Healey, C.A. No 20-10767-RGS, at14-18, 20, 22
(May 2020). As in ACA International v. Maura Healey, C.A. No 20-10767-RGS (May
2020), a record does not exist that suspension of the jury trial right stands warranted. Ifa
change in the constitutional right is warranted, adoption of a constitutional amendment is
the proper route. Opinion of the Justices, 360 Mass. 877 at 887 (1971 )(Quirico Dissenting)
Inthe second case showing limits on a pandemic being used to abrid ge constitutional rights,
firearms dealers sought injunctive relief to establish their right to open gun shops
notwithstanding a Massachusetts emergency order requiring that they be shut during a
period of the Covid pandemic. Judge Woodlock granted the order providing the relief
requested by the gun shop owners. Id at 14. McCarthy et al., v. Baker C.A.No. 20-10701-
DPW and Cedrone et al. v Baker C.A.No. 20-40041-DPW (combined decision of May
2020), Judge Woodlock of the United States District Court for the District of Massachu
setts
tuled in favor of the firearms dealers and noted that Governor Baker’s Covid-19 Order
requiring temporary closure of firearms stores violated a constitutional right. Id. Judge
Woodlock’s precise reasoning is difficult to define as his order stated that he was relying
on remarks stated in the stenographic recording of the hearing and arguments presented in
the briefs. Id at 1. Reports of his comments, as well as arguments he referenced, strongly
suggest, if not document, his conclusion that the pandemic had not been demonstrated
to
warrant violation of second amendment rights. According to published reports, he stated
“these plaintiffs ...have constitutional rights that deserve respect and vindication.” See
Boston Globe accessible at https:/Avww.bostonglobe.com/2020/05/07/nation/federal -
judge-says-he-will-issue-order-allowing- mass-gun-shops-re-open/, quoting Judge
Woodlock at oral argument. Accordingto the report he further stated, “When we’re dealing
with constitutional rights, some degree of clarity that tells us that it’s necessary is perhaps
a foundational requirement.” Id. Similar to the situation in McCarthy and Cedrone, the
means chosen to address the cases to be tried (reduction of number of jurors) impinges
impermissively on the constitutional right to a 12 person jury trial. As the moving parties
in McCarthy et al., v. Baker and Cedrone et al. v Baker argued, courts must be vigilant to
ensure that the emergency cannot and should not be used as an opportunity to chip away at
protected rights. “The Constitution is best preserved by reliance on standards tested over
time and insulated from the pressure of the moment.” Hamdan v. Rumsfeld, 548 US 557,
637 (2006)(Breyer, J. Concurring). The moving party here asks this Court to consider the
arguments advanced in an amicus brief and apparently accepted by Judge Woodlock, which
arguments arose from a Patriot Act case involving provisions authorizing letters requesting
information from wire and electronic communications providers. Doe v. Gonzales, 500
F.Supp. 2d 379, 414 (S.D.N.Y.2007). Inthat case, the federal court in the Southern District
stated:
These concerns may be readily dismissed as protesting too much, as conjuring a remote,
unduly alarmist parade of horrors. But those who are inclined, for the risk of the moment,
to give chance a chance by wagering against the improbable, should consult history forits
guidance as to what the roll of the dice may hold in predictable situations. The past is long,
and so is the future we want to protect. But too often memory is short. The pages of this
nation’s jurisprudence cry out with compelling instances illustrating that, called upon to
adjudicate claims of extraordinary assertions of executive or legislative or even state
power, ...when the judiciary lowers its guard on the Constitution, it opens the doorto far-
reaching invasions of liberty. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89
L.Ed. 194 (1944), ... Doe v. Gonzales, 500 F.Supp. 2d 379, 414 (S.D.N.Y. 2007)
Defendant’s Reply to Plaintiff's Response to Defendant’s Request for Report to the
Massachusetts Appeals Court
The defendant also assertsa 2020 ruling of the United States Supreme Court and facial
analysis of the differential text of jury trial rights in civil and criminal cases under the
Massachusetts Constitution support entitlement to a 12 person jury..
The United States Supreme Court in Ramos v. Louisiana, 140 US 1390 (2020) overruled
Apodaca v. Oregon, 406 US 404 (1972), an earlier decision holding jury right incorporated
through the Fourteenth Amendment permitted non-unanimous jury verdicts in serious state
court criminal proceedings. In opinions by members of the fractured court noted a) the right
to trial by jury in the federal constitution has not been applied to cases involving less than
six month imprisonment Ramos v. Louisiana, 140 US 1390 (2020) at 1394, b) the non-
unanimous provisions of the statutes found unconstitutional emanated from racially
discriminatory objectives seeking to render minority jury votes meaningless, Id at 1394
and c) the common law civil jury trial right required unanimity according to leading
common law commentators, Thomas, J. C oncurring. Id 1422, and
d) the decision reversing
Apodaca will likely result in new efforts to overrule precedent on the federal side allowing
6 rather than 12 person juries, Alito J. Dissenting, Id at 1436, and the incorporated federal
jury trial right delimiting state action will now be as broad as the jury trial right in federal
criminal cases with respect to unanimity. Ramos v. Louisiana, 140 US 1390 (2020) at 1394-
97. The decision suggests that the breadth of the Massachusetts jury trial right in Article
XV has for superior court cases, as indispensable characteristics, 12 members, a
requirement for unanimity, and certainly more than decision making by a six person jury
capable of reaching a verdict agreed to by five members of the jury. The liberty interest
advanced as invalidating the non-unanimity argument in six person civil juries lacks
relevance in a broad category of criminal cases, bumps up against informative precedent
in the United States Supreme Court, and fails to address the facial text of the Massachusetts
constitution that elevates the civil jury right in contrast with the criminal jury trial right.
Article 12 sets forth the jury trial right in criminal cases in Massachusetts , and specifies
that “the legislature shall not make any law, that subject any person to a capital or infamous
punishment, excepting for the government of the Army and Navy, without trial by jury,“
In contrast, Article 15 sets forth the civil jury trial right, and specifies it pertains in all cases
except those confined to equity, stating: “in all controversy concerning property, and in all
suits between two or more persons, the parties have a right to trial by jury .” It further
emphasizes the importance of this right by adding language not found in the Article 12 jury
trial right, specifying that “ this method of procedure shall be held sacred.” The defendant
respectfully submits that the differential text supports the appropriateness of argument by
analogy that non-unanimous six person civil juries do not comport with the requirements
of Article XV, and point at the important and well documented role of Massachusetts
Superior Court jurists in advancing the key tenets of democracy by scrupulous protection
and application of 12 person jury trial rights. See Young, Vanishing Jury Trials, Suffolk
Law Review, Vol. XL1 particularly at p.84.
4. WITNESSES
a. PLAINTIFF'S WITNESSES
I Elsa Acevedo De Martinez
38 Woodman Street #2
Lynn, MA 01905
Ms. Acevedo
De Martinez requires a Spanish interpreter,
Fabio Martinez
38 Woodman Street #2
Lynn, MA 01905
Edwin Martinez
38 Woodman Street #2
Lynn, MA 01905
Carmen Nunez-Acevedo
Plaintiff reserves the right to call any witness listed by Defendant
b. DEFENDANT'S WITNESSES
1 Elsa Acevedo De Martinez
38 Woodman Street #2
Lynn, MA 01905
Ms. Acevedo De Martinez requires a Spanish interpreter.
Fabio Martinez
38 Woodman Street #2
Lynn, MA 01905
Edwin Martinez
38 Woodman Street #2
Lynn, MA 01905
Carmen Nunez-Acevedo
Record Keeper Wells Fargo
Carlos Nuervo, 26 Woodman Street
Walter Saprentis, 26 Woodman Street
9. Record Keeper Boston Medical Center
10. Comptroller Boston Medical Center
IL. Record Keeper Beverly Hospital
12. Record Keeper-Miguelina Colon- Advance Physical Therapy
13. Joseph O’Connor-Director-Advance Physical Therapy
14. Record Keeper Lynn Community Health Center
15. Dr. Brent Fry Ling
16. Edward McEImon, PTA Advance Physical Therapy
17. Dr. Robert Nicoletta, surgeon, Boston Medical Center
Defendant reserves the right to call any witness listed by Plaintiff.
18. EXPERT WITNESSES
a, PLAINTIFF'S EXPERT WITNESSES
The Plaintiff respectfully requests the opportunity to supplement this section of the
Pretrial Memorandum at the appropriate time prior to trial and to submit any Expert
Witness and/or Independent Medical Examination Rebuttal Report with proper notice.
The Plaintiff will submit certified medical records and bills pursuant to the
provisions
of Mass. Gen. Laws c. 233 §79G.
b. DEFENDANT'S EXPERT WITNESSES
If the plaintiff adds an expert, the defendant reserves his right to add
an expert.
19. Estimated Length of Trial
Five half days
20 Itemized List of Asserted Special Damages
Plaintiffs Asserted Medical Bills
a. Advance Physical Therapy $ 7,491.00
b. Beverly Hospital $ 1,420.35
c Boston Medical Center $19,505.15
d Lynn Community Health Center $ 1,178.00
Total: $29,594.50
Plaintiff's Asserted Lost Wages
Approximately 09/05/2017 — 10/03/2017 $ 2,169.60
Asserted Total Special Damages $31,764.10
21 Certification
Counsel verifies that joint discussions to date have not established a framework for
settlement nor agreement on use of ADR.
Counsel have not consulted about provisions for case-specific manage
ment available under
Superior Court Rule 20(h)-(i).
Respectfully submitted,
The Plaintiff, The Defendant,
By and through counsel, By and through counsel,
Litt Tuche. A Cluaem &
2
/ are Ae. ~
Kristin Tucker (BBO# 692168) Gerald T. Anglin (BBO# 019560)
ROSENCRANZ & ASSOCIATES Lauren E. Plante (BBO# 672615)
Two Center Plaza, Suite 610 Cohn, Rios & Anglin
Boston, Massachusetts 02108 Two Center Plaza
Telephone: (617) 523-6900 Boston, MA 02108
Facsimile: (617) 227 6886 Telephone: (617) 723-1720
ktucker@thelawexperts.com gta@cohnriosanglin.com
iplante@cohnriosanglin.com
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COMMONWEALTH OF MASSACHUSETTS ESSEX, SS, ESSEX SUPERIOR COURT C.A.NO.: 1877CV01635 ELSA ACEVEDO DE MARTINEZ, Plaintiff, “Ve RECEIVED LORENZO RAMOS FUENTES 5/10/2021 Defendant. JOINT PRETRIAL MEMORANDUM 1 Plaintiff's FACTS This is a civil action arising out of a slip and fall accident which occurred on February 8, 2017 on the sidewalk in front of 26 Woodman Street, Lynn, Massachusetts. At said date and time Defendant Lorenzo Ramos Fuentes owned and controlled the property at the Premises (“Premises”). On December 24, 2016, Elsa Acevedo De Martinez suffered injuries as a result ofa slip and fall. DEFENDANT'S FACTS The Defendant has an ownership interest and ownership responsibility for the premises at 26 Woodman Street, Lynn, Massachusetts, The alleged accident occurred on the sidewalk in front of 26 Woodman Street, Lynn, Massachusetts. PLAINTIFF'S STATEMENT Plaintiff Elsa Acevedo De Martinez expects the evidence will show that she suffered severe injuries, including a right rotator cuff tear, which required a surgery, and that her injuries were the result of a slip and fall which occurred on February 8, 2017, at the Premises, Plaintiff also expects the evidence to show that the Defendant was responsible for the property located at 26 Woodman Street, Lynn, Massachusetts and that Defendant was negligent in creating a snowbank in his driveway and did not salt/sand the sidewalk as a preventative measure for any melting snow. DEFENDANT'S STATEMENT The Defendant did not breach any duty that proximately produced injury to the Plaintiff. Inthe event that there is a finding of negligence, evidence presented will establish that the Plaintiffs own negligence accounted for any injuries sustained. DESCRIPTION OF THE CASE This is a civil action arising out of an accident which occurred on February 8, 2017, at the property owned, controlled or maintained by the defendant in Lynn, Massachusetts. The plaintiff alleges she was injured on the premises as a result of the defendant’s negligence. The plaintiff now seeks monetary compensation for her injuries. The defendant denies he was negligent in his maintenance of the property. DEFENDANT’S DESCRIPTION OF CASE This is a civil action arising out of an accident which Plaintiff claims occurred on February 8, 2017, at the property owned, controlled or maintained by the Defendant in Lynn, Massachusetts. The defendant denies that the accident occurred as claimed and contests the cause and scope of damages alleged. SIGNIFICANT LEGAL ISSUES Whether The Article 15 Jury Trial Right With The Chapter 234 Provision for a 5/6 Verdict Precludes the Use of a non-Unanimous Six Person Jury, and 2) Whether Civil Matters Reserved for the Superior Court Entitle a Defendantto a Twelve Person Jury Under the Jury Right Specified in the Massachusetts Constitution 2. Whether The Article 15 Jury Trial Right With The Chapter 234 Provision for a 5/6 Verdict Precludes the Use of a non-Unanimous Six Person Jury Article XV provides in civil cases the procedure of the jury trial right shall be held “sacred”, In Dalis v. Buyer Advertising, Inc., 418 Mass 220 (1994) the Court elaborated that “the jury system, as the “sacred” method for resolving factual disputes, is the most important means by which laypersons can participate in and understand the legal system. Dalis v. Buyer Advert., Inc.,418 Mass. 220, 222, 636 N.E.2d 212, 214 (1994) It brings the “rules of law to the touchstone of contemporary common sense.” Id., quoting 1 W. Holdsworth, A History of English Law 348-349 (3d ed. 1922). “Jurors bring to a case their common sense and community values; their ‘very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye.’ ” Dalis v. Buyer Advertising, Inc., 418 Mass 220 (1994) citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 355, 99 S.Ct. 645, 664, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting), quoting H. Kalven & H. Zeisel, The American Jury 8 (1966M.G.L.A. Const. Pt. 1, Art. 15.Jamgochian v. Dierker, 425 Mass. 565, 681 N.E.2d 1180 (1997) In Burch v State of Louisiana, 441 US 130 (1979), United States Supreme Court determined that a statute permitting a criminal conviction by a non-unanimous six person Jury violates the right toa jury trial guaranteed by the sixth and the fourteenth amendments, Id at 134-139. In so holding, the court stated “we believe that conviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to trial by jury.” Burch at 134. The Court pointed out that non-unanimity is allowed in non-capital cases with twelve jurors, but that non- unanimity was not permissible in non-petty cases, as such an approach threatened the jury’s role in serving as a check on the government and a compliant or eccentric judge. It also threatened group deliberation that includes a fair cross. section of the community and helps insulate juries from intimidation. Id. A recent letter from the Justices of the Supreme Judicial Court about the need to promote racial equity in the Courts further supports the importance of rejecting efforts to shrink the jury size despite Article XV, insofar at least that larger juries tend to elevate the chance for including jurors of more diverse racial background. Letter from the Seven Justices of the Supreme Judicial Court to Members of the Judiciary and the Bar (June 3, 2020) accessible at https://www.mass.gov/news/letter- from-the-seven-justices-of-the-supreme-judicial-court -to-members-of-the-jud iciary-and.; Moore and Panken, Jury Size: Less Is Not More, accessible at courses?2.cit.cornell.edu. Massachusetts requires that a civil jury be instructed that 5/6 votes of a jury panel is sufficient to establish a verdict. Chapter 234A sec 68B (providing “In any civil action the jury shall be instructed that the agreement of 5/6 of its members shall be sufficient torender any special or general verdict”.) The defense here submits the six person jury, with the requirement of a 5/6 verdict, as in Burch v. State of Louisiana 441 US 130 (1979), violates the trial right guaranteed by Article XV of the Massachusetts constitution. 3. Whether Civil Matters Reserved for the Superior Court Entitle a Defendant to a Twelve Person Jury Under the Jury Right Specified in the Massachusetts Constitution Notwithstanding the nonbinding advisory opinion of the Supreme Judicial Court that a unanimous six person jury complies with the Article XV jury trial right in a less serious case, the requesting party here submits that a six person jury as opposed to a twelve person jury violates the Article XV jury trial right for civil cases in matters reserved for Superior Court by monetary significance. The jury size for civil and criminal trials had become fixed at twelve in the fourteenth century. Williams v. Florida, 399 US 78, 89 (1970). Between 1780 and 1980 neither criminal nor civil litigants were required to accept a jury less than 12 persons. Opinion of the Justices, 360 Mass. 877, 886-887, (1971)(Quirico Dissenting). In more recent years, six person juries have been employed in some Massachusetts district courts, based on Williams v. Florida, 399 US 78 (1970)type analysis that 6 is allowable for non-infamous crimes, Opinion of the Justices, 360 Mass. 877(1971) accessible at hitp://masscases.com/cases/sjc/360/360mass877.html. While entertaining whether the legislature might require criminal defendants to accept six person juries for less serious cases, the Supreme Judicial Court issued an advisory opinion on whether such a jury met constitutional muster. Id. The Court, in response, carefully noted that its opinion did not addresstrials “for the more serious crimes or in any case where the defendant in fact maybe exposed to a State prison sentence” and opined that the 6 person jury was thus appropriate for offenses not involving “infamous punishment”. Opinion of the Justices, 360 Mass. 877 at 885 (1971) Justice Quirico dissented from even allowing a reduction in the number of jurors for a non-petty crime. Opinion of the Justices, 360 Mass. 877 at 886 (1971) He stressed that precedent requires preservation of the jury trial, and maintained that reduction in the number of jurors should only be done afteran appropriate constitutional amendment. Id at 887. Williams v. Florida, 399 US 78 (1970) and Burch v. State of Louisiana, 441 US 130 (1979) support the position of the Defendant here that civil cases deemed appropriate for Superior Court (no reasonable likelihood that recovery by the Plaintiff will be less than or equal to $50,000, see MGL ch. 212, sect 3 and Order of Supreme Judicial Court 17 July 2019) entitle parties in the cases to a twelve person jury under Article XV. The Defendant here submits that Superior Court trials of more serious matters, reserved for the Superior Court as opposed to the District Court, trigger entitlement to the twelve person jury rooted in common law. This appears to accord with the communication of the jury management advisory committee that recommended suspension of the twelve person jury based on pandemic circumstances. Indeed, the jury management advisory committee noted, “there is a long standing common law tradition of twelve person juries for both civil and criminal cases in the Superior Court.” Jury Management Advisory Committee Report at 29, accessible at _https://www.mass.gov/info-details/ /jury-management-ad visory-committee- report-and-recommendations-on-the-resumption-of, citing footnote 42, Opinion of the Justices, 360 Mass. 877, 886-887 (1971)(Quirico Dissenting) and see G.L.c. 234A sect. 68 referencing twelve person juries. As the elements in the method of jury trial tending to protect the citizen against arbitrary power must be preserved, and the court stated “whatever tends in any appreciable degree to impair the essentials of the right must be struck down”. Opinion of the Justices, 360 Mass. 877 (1971) at 885. The Covid-19 pandemic circumstances cannot serve as the foundation to diminish the Article XV jury trial right upheld for centuries by common law practice The Covid-19 pandemic circumstances cannot serve as the foundation to diminish the Article XV jury trial right upheld for centuries by common law practice. The Supreme Judicial Court Order of September 17, 2020, requires use of a six person jury in Superior Court. SJC Order accessible at https:/vww.mass.gov/supreme-judicial-court- rules/supreme-judicial-court-fourth-updated-order-regard ing-court-operations, That Order appeared to arise from adoption of an observation from the Advisory Committee Report and Recommendation on Jury Management, Report and Recommendations. Report at p. 29 July 31, 2020) accessible at http: https://www.mass.gov/info-details/jury-management- ad visory-committee-report-and -recommendations~on-the-resumption-of, The report asserted that the pandemic warranted a Court ordered reduction in jury size. Id at 28-29. The Report noted Arizona had done something similar but failed to advancea legal analysis for what appears to be a court ordered suspension of a jury trial right. Id. Two recent tulings from the Federal District Court in Boston on whether the pandemic warrants suspension of constitutional rights show the sharp limits on the permissibility of using the pandemic to suspend constitutional rights and support the position that the pandemic circumstance does not allow erosion of the jury trial right. In the first case, ACA International v. Maura Healey, C.A. No 20-10767-RGS, (May 2020) debt collectors asserted that an emergency regulation in Massachusetts prohibiting specified calls to consumers and associated activities improperly abridged their constitutional rights to free expression and sought a temporary restraining order effectively nullifying the regulation. Id at 5. In holding for the debt collectors, Judge Stearns stated “constitutional rights do not take a holiday simply because governing authorities declare an emergency” Id. at footnote 9. In rendering his decision, Judge Stearns relied on Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934) at 416, which Judge Steams noted stated an a) “emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved.” and b), in Blaisdell, the United State Supreme Court opined, “Constitutions cannot be changed by events alone. They remain binding as the acts of the people in their sovereign capacity,...until they are amended or abrogated by the action prescribed by the authority which created them. It is not completent (sic) ...to change a constitution, or declare it changed, simply because it appears ill adapted to a new state of things.” Id at 425. Judge Stearns rejected the Attorney General’s argument that shielding consumers from debt collection, protecting residential tranquility and preserving citizen financial wellbeing during the pandemic warranted the regulation. ACA International v. Maura Healey, C.A. No 20-10767-RGS, at14-18, 20, 22 (May 2020). As in ACA International v. Maura Healey, C.A. No 20-10767-RGS (May 2020), a record does not exist that suspension of the jury trial right stands warranted. Ifa change in the constitutional right is warranted, adoption of a constitutional amendment is the proper route. Opinion of the Justices, 360 Mass. 877 at 887 (1971 )(Quirico Dissenting) Inthe second case showing limits on a pandemic being used to abrid ge constitutional rights, firearms dealers sought injunctive relief to establish their right to open gun shops notwithstanding a Massachusetts emergency order requiring that they be shut during a period of the Covid pandemic. Judge Woodlock granted the order providing the relief requested by the gun shop owners. Id at 14. McCarthy et al., v. Baker C.A.No. 20-10701- DPW and Cedrone et al. v Baker C.A.No. 20-40041-DPW (combined decision of May 2020), Judge Woodlock of the United States District Court for the District of Massachu setts tuled in favor of the firearms dealers and noted that Governor Baker’s Covid-19 Order requiring temporary closure of firearms stores violated a constitutional right. Id. Judge Woodlock’s precise reasoning is difficult to define as his order stated that he was relying on remarks stated in the stenographic recording of the hearing and arguments presented in the briefs. Id at 1. Reports of his comments, as well as arguments he referenced, strongly suggest, if not document, his conclusion that the pandemic had not been demonstrated to warrant violation of second amendment rights. According to published reports, he stated “these plaintiffs ...have constitutional rights that deserve respect and vindication.” See Boston Globe accessible at https:/Avww.bostonglobe.com/2020/05/07/nation/federal - judge-says-he-will-issue-order-allowing- mass-gun-shops-re-open/, quoting Judge Woodlock at oral argument. Accordingto the report he further stated, “When we’re dealing with constitutional rights, some degree of clarity that tells us that it’s necessary is perhaps a foundational requirement.” Id. Similar to the situation in McCarthy and Cedrone, the means chosen to address the cases to be tried (reduction of number of jurors) impinges impermissively on the constitutional right to a 12 person jury trial. As the moving parties in McCarthy et al., v. Baker and Cedrone et al. v Baker argued, courts must be vigilant to ensure that the emergency cannot and should not be used as an opportunity to chip away at protected rights. “The Constitution is best preserved by reliance on standards tested over time and insulated from the pressure of the moment.” Hamdan v. Rumsfeld, 548 US 557, 637 (2006)(Breyer, J. Concurring). The moving party here asks this Court to consider the arguments advanced in an amicus brief and apparently accepted by Judge Woodlock, which arguments arose from a Patriot Act case involving provisions authorizing letters requesting information from wire and electronic communications providers. Doe v. Gonzales, 500 F.Supp. 2d 379, 414 (S.D.N.Y.2007). Inthat case, the federal court in the Southern District stated: These concerns may be readily dismissed as protesting too much, as conjuring a remote, unduly alarmist parade of horrors. But those who are inclined, for the risk of the moment, to give chance a chance by wagering against the improbable, should consult history forits guidance as to what the roll of the dice may hold in predictable situations. The past is long, and so is the future we want to protect. But too often memory is short. The pages of this nation’s jurisprudence cry out with compelling instances illustrating that, called upon to adjudicate claims of extraordinary assertions of executive or legislative or even state power, ...when the judiciary lowers its guard on the Constitution, it opens the doorto far- reaching invasions of liberty. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), ... Doe v. Gonzales, 500 F.Supp. 2d 379, 414 (S.D.N.Y. 2007) Defendant’s Reply to Plaintiff's Response to Defendant’s Request for Report to the Massachusetts Appeals Court The defendant also assertsa 2020 ruling of the United States Supreme Court and facial analysis of the differential text of jury trial rights in civil and criminal cases under the Massachusetts Constitution support entitlement to a 12 person jury.. The United States Supreme Court in Ramos v. Louisiana, 140 US 1390 (2020) overruled Apodaca v. Oregon, 406 US 404 (1972), an earlier decision holding jury right incorporated through the Fourteenth Amendment permitted non-unanimous jury verdicts in serious state court criminal proceedings. In opinions by members of the fractured court noted a) the right to trial by jury in the federal constitution has not been applied to cases involving less than six month imprisonment Ramos v. Louisiana, 140 US 1390 (2020) at 1394, b) the non- unanimous provisions of the statutes found unconstitutional emanated from racially discriminatory objectives seeking to render minority jury votes meaningless, Id at 1394 and c) the common law civil jury trial right required unanimity according to leading common law commentators, Thomas, J. C oncurring. Id 1422, and d) the decision reversing Apodaca will likely result in new efforts to overrule precedent on the federal side allowing 6 rather than 12 person juries, Alito J. Dissenting, Id at 1436, and the incorporated federal jury trial right delimiting state action will now be as broad as the jury trial right in federal criminal cases with respect to unanimity. Ramos v. Louisiana, 140 US 1390 (2020) at 1394- 97. The decision suggests that the breadth of the Massachusetts jury trial right in Article XV has for superior court cases, as indispensable characteristics, 12 members, a requirement for unanimity, and certainly more than decision making by a six person jury capable of reaching a verdict agreed to by five members of the jury. The liberty interest advanced as invalidating the non-unanimity argument in six person civil juries lacks relevance in a broad category of criminal cases, bumps up against informative precedent in the United States Supreme Court, and fails to address the facial text of the Massachusetts constitution that elevates the civil jury right in contrast with the criminal jury trial right. Article 12 sets forth the jury trial right in criminal cases in Massachusetts , and specifies that “the legislature shall not make any law, that subject any person to a capital or infamous punishment, excepting for the government of the Army and Navy, without trial by jury,“ In contrast, Article 15 sets forth the civil jury trial right, and specifies it pertains in all cases except those confined to equity, stating: “in all controversy concerning property, and in all suits between two or more persons, the parties have a right to trial by jury .” It further emphasizes the importance of this right by adding language not found in the Article 12 jury trial right, specifying that “ this method of procedure shall be held sacred.” The defendant respectfully submits that the differential text supports the appropriateness of argument by analogy that non-unanimous six person civil juries do not comport with the requirements of Article XV, and point at the important and well documented role of Massachusetts Superior Court jurists in advancing the key tenets of democracy by scrupulous protection and application of 12 person jury trial rights. See Young, Vanishing Jury Trials, Suffolk Law Review, Vol. XL1 particularly at p.84. 4. WITNESSES a. PLAINTIFF'S WITNESSES I Elsa Acevedo De Martinez 38 Woodman Street #2 Lynn, MA 01905 Ms. Acevedo De Martinez requires a Spanish interpreter, Fabio Martinez 38 Woodman Street #2 Lynn, MA 01905 Edwin Martinez 38 Woodman Street #2 Lynn, MA 01905 Carmen Nunez-Acevedo Plaintiff reserves the right to call any witness listed by Defendant b. DEFENDANT'S WITNESSES 1 Elsa Acevedo De Martinez 38 Woodman Street #2 Lynn, MA 01905 Ms. Acevedo De Martinez requires a Spanish interpreter. Fabio Martinez 38 Woodman Street #2 Lynn, MA 01905 Edwin Martinez 38 Woodman Street #2 Lynn, MA 01905 Carmen Nunez-Acevedo Record Keeper Wells Fargo Carlos Nuervo, 26 Woodman Street Walter Saprentis, 26 Woodman Street 9. Record Keeper Boston Medical Center 10. Comptroller Boston Medical Center IL. Record Keeper Beverly Hospital 12. Record Keeper-Miguelina Colon- Advance Physical Therapy 13. Joseph O’Connor-Director-Advance Physical Therapy 14. Record Keeper Lynn Community Health Center 15. Dr. Brent Fry Ling 16. Edward McEImon, PTA Advance Physical Therapy 17. Dr. Robert Nicoletta, surgeon, Boston Medical Center Defendant reserves the right to call any witness listed by Plaintiff. 18. EXPERT WITNESSES a, PLAINTIFF'S EXPERT WITNESSES The Plaintiff respectfully requests the opportunity to supplement this section of the Pretrial Memorandum at the appropriate time prior to trial and to submit any Expert Witness and/or Independent Medical Examination Rebuttal Report with proper notice. The Plaintiff will submit certified medical records and bills pursuant to the provisions of Mass. Gen. Laws c. 233 §79G. b. DEFENDANT'S EXPERT WITNESSES If the plaintiff adds an expert, the defendant reserves his right to add an expert. 19. Estimated Length of Trial Five half days 20 Itemized List of Asserted Special Damages Plaintiffs Asserted Medical Bills a. Advance Physical Therapy $ 7,491.00 b. Beverly Hospital $ 1,420.35 c Boston Medical Center $19,505.15 d Lynn Community Health Center $ 1,178.00 Total: $29,594.50 Plaintiff's Asserted Lost Wages Approximately 09/05/2017 — 10/03/2017 $ 2,169.60 Asserted Total Special Damages $31,764.10 21 Certification Counsel verifies that joint discussions to date have not established a framework for settlement nor agreement on use of ADR. Counsel have not consulted about provisions for case-specific manage ment available under Superior Court Rule 20(h)-(i). Respectfully submitted, The Plaintiff, The Defendant, By and through counsel, By and through counsel, Litt Tuche. A Cluaem & 2 / are Ae. ~ Kristin Tucker (BBO# 692168) Gerald T. Anglin (BBO# 019560) ROSENCRANZ & ASSOCIATES Lauren E. Plante (BBO# 672615) Two Center Plaza, Suite 610 Cohn, Rios & Anglin Boston, Massachusetts 02108 Two Center Plaza Telephone: (617) 523-6900 Boston, MA 02108 Facsimile: (617) 227 6886 Telephone: (617) 723-1720 ktucker@thelawexperts.com gta@cohnriosanglin.com iplante@cohnriosanglin.com