Volume 1985
Article 4
1-1-1985
Comment
Peter A. Donovan
Frederic N. Halstrom
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Recommended Citation
Comment
PETER A. DONOVAN* FREDERIC N. HALSTROM**
THE COLLATERAL SOURCE INCOME RULE AND THE CORSETTI
DECISION
The decision of the Supreme Judicial Court in Corsetti v. The Stone Co.1 has already had a major impact upon the trial of tort cases in the
Commonwealth in the short period of time since the case was decided in the fall of 1985. As the matter has been reported to the authors, however, the decision has been widely misinterpreted as making evidence of col-lateral source income automatically admissible in any case where the defense claims malingering on the part of the plaintiff. This is not the holding of Corsetti, nor is it a practice that is consistent with the decision in the case.
Corsetti involved an action of tort brought by a stonemason, an em-ployee of a subcontractor, to recover for injuries sustained when a scaf-folding side bracket supporting the platform on which he was working failed and he fell approximately forty feet to the ground.2 Suit was brought
against the general contractor alleging that the general contractor had negligently failed to require workers on the construction project to use appropriate safety equipment.2a On appeal, the Supreme Judicial Court reversed a jury verdict for the plaintiff on the ground that the trial court's exclusion of evidence of collateral source income was error entitling the defendant general contractor to a new trial limited to the question of damages.3
The general contractor contended that the collateral source income evidence was admissible both to establish malingering on the part of the plaintiff and to impeach the veracity of the plaintiff. Ja Concluding that
* PETER A. DONOVAN is a Professor of Law, Boston College Law School and member of the Massachusetts Bar.
** Member of the Massachusetts Bar.
The authors wish to acknowledge their participation in the Corsetti case as counsel for the plaintiff to caution the reader against any unintended bias which may have crept into this analysis.
1 396 Mass. I, 483 N.E.2d 793 (1985). 2 /d. at 3, 483 N .E.2d at 794. 2a Jd.
collateral source income evidence "directly contradicted"4 the plaintiff's "volunteered testimony of penurious circumstances allegedly resulting
from his injury,''5 the Supreme Judicial Court held that "the defendant
was entitled as a matter of right to the admission of that evidence. "6 It
is the phrase that "the defendant was entitled as a matter of right to the admission of [the] evidence" that has caused the confusion leading some jurists to conclude that Corsetti has made a major change in the collateral source income rule. Only a very minor change has been made in the rule, however, and a careful reading of the opinion makes this clear.
The major misconception of Corsetti is that it makes evidence of collateral source income admissible as a matter of right on the issue of malingering. In fact, Corsetti expressly holds to the contrary. As the Court stated:
Ordinarily, "a defendant may not show that the plaintiff has received other compensation for his injury, whether from an accident insurapce policy, ... from workmen's compensation, .. · . from an employer, ... or from other sources. "7
From this, it is clear that the Court did not change the general rule that evidence of collateral source income is ordinarily not admissible. The Court stated, however, that "there is an exception to this [general] rule"
which has been "long recognized" in prior Massachusetts decisions.8
Under this long recognized rule, "in some circumstances, evidence of collateral source income may be admissible, in the discretion of the trial judge, 'as probative of a relevant proposition, say "control" or credibility
of a particular witness.' "9
The opinion makes it clear that the exception is both very limited and constitutes no change in law. First, the Court noted that the exception
has been "long recognized" in "[o]ur cases."10 Second, the Court
indi-cated that the exception is truly an exception since it applies only in
"some circumstances."10a Finally, far from making such evidence
admis-sible under the exception "as a matter of right," the Court instead stated that the evidence "may be admissible, in the discretion of the trial
4 /d. at 18, 483 N.E.2d at 803.
5 /d. at 20, 483 N.E.2d at 804. 6/d. at 18, 483 N.E.2d at 803.
7 /d. at 16-17, 483 N.E.2d at 802 (citations omitted) (quoting Goldstein v. Contarz, 364
Mass. 800, 808-09, 309 N.E.2d 196, 202 (1974)).
"ld. at 17, 483 N.E.2d at 802. In addition to Goldstein, supra note 7, the Court relied upon McElwain v. Capotosto, 332 Mass. 1, 2-3, 122 N.E.2d 901, 902 (1954); Centola v. Driscoll, 4 Mass. App. Ct. 817, 348 N.E.2d 442, 443 (1976); and Nassif v. Smith, 4 Mass. App. Ct. 814, 348 N.E.2d 443, 444 (1976).
9 /d. at 17, 483 N.E.2d at 802 (quoting Goldstein, supra note 7, 364 Mass. at 812, 309
N.E.2d at 205) (emphasis added by the Corsetti Court).
10 /d. at 17, 483 N.E.2d at 802.
COMMENT 3
judge. "10b Certainly, this language is inconsistent with a broad-sweeping
change in the law.
The Court carefully indicated that evidence of collateral source income is not admissible simply because the defense claims that the plaintiff is
malingering.10c And, in extrapolating from the facts of the case, this is
true even though the amount of the disability income received by the
plaintiff approximates or even exceeds his pre-injury level of income.11
The defendant cannot rely solely upon collateral source income to suggest malingering. There must be other evidence of malingering:
Where there is no other evidence to suggest that a plaintiff's prolonged absence from work is the result of anything other than his disability, the fact that he was receiving collateral source income has little, if any, pro-bative value.12
In the absence of other evidence of malingering, evidence of collateral source income is thus inadmissible primarily because it "has little, if any, probative value," but also because "jurors might be led by the irrelevancy to consider plaintiffs' claims unimportant or trivial or to refuse plaintiffs' verdicts or to reduce them, believing that otherwise there would be unjust double recovery. "13
Even when there is other evidence of malingering, the admissibility of collateral source income remains discretionary with the trial judge. This is clear from the disagreement of the Corsetti majority with the manner in which Justice Liacos, in dissent, interpreted the majority opinion. According to the majority, "our holding that the defendant was entitled as a matter of right to the admission of [collateral source income] evi-dence is not, as Justice Liacos says it is, grounded on its relevance to
the issue of malingering. "14 The reason for not making such evidence
admissible as a matter of right on the issue of malingering and for the retention of discretion in the trial judge is explained in the opinion:
Where, however, other evidence of malingering makes the plaintiff's mo-tive for staying out of work a genuine issue at trial, evidence of collateral source income may be persuasive confirmation of malingering.15
In light of this language, the trial judge must make a twofold determina-tion. First, he must determine whether the other evidence of malingering is sufficient to create "a genuine issue at trial." Second, he then must
lOb Jd.
IOo Jd.
11 At least for some period of time following the accident, Corsetti "had more money
than he had before." See infra note 31 and accompanying text.
12 /d. at 17, n.14, 483 N.E.2d at 802, n.14.
13 /d. at 17, 483 N.E.2d at 802 (quoting Goldstein, supra, note 7, 364 Mass. at 809, 309
N.E.2d at 203).
14 Id. at 18, 483 N.E.2d at 803 (emphasis added).
decide whether the particular collateral source evidence sought to be introduced is such that it "may be persuasive confirmation of malinger-ing." If the judge does not feel that the other evidence is sufficient to raise "a genuine issue" regarding the plaintiff's motive for a prolonged absence from work, then there is no basis for the introduction of the collateral source income evidence. More important, however, is the sit-uation where the particular collateral source income evidence sought to be utilized is such that it does not suggest malingering. In this instance,
it would not be the kind of evidence that the Corsetti majority said "may
be persuasive confirmation of malingering." For this reason alone, it should not be admitted. Furthermore, because the "long recognized"
exception remains discretionary with the trial judge, 16 such evidence may
be excluded whenever the trial judge concludes that its prejudicial effect
outweighs its probative value.17
Although the receipt of collateral source benefits is in some instances
suggestive of malingering, this is not always the case.18 Instances will
exist where the context in which disability benefits are received will actually establish the contrary proposition, that is, that the plaintiff is in fact totally disabled. Consider, for example, the following hypothetical: The plaintiff was injured in an industrial accident in September 1978. Within a couple of weeks, he received workers' compensation benefits. In December, 1979, the Social Security Administration made a determi-nation that he was totally disabled and awarded him Social Security Disability Insurance (SSDI) benefits. In September, 1980, however, the plaintiff was informed by the Social Security Administration that it in-tended to terminate his benefits in December of that year. At the time of the hearing before an administrative law judge in June, 1982, on the plaintiff's challenge to the Social Security Administration's termination decision, eighteen months had passed during which time the plaintiff received no SSDI benefits. After the hearing, the administrative law judge
16 See supra notes 9-10 and accompanying text.
17 See, LIACOS, HANDBOOK OF MASSACHUSETTS EVIDENCE, 410 (5th ed. 1981).
18 Conceptually, analysis of the evidentiary considerations involved in the determination
COMMENT 5
determined that the cut-off of SSDI benefits was improper since plain-tiff's "'disability' has not ceased" and ordered reinstatement of SSDI benefits retroactively. A second attempt to terminate the plaintiff's SSDI benefits occurred during the end of 1983. After re-examination by medical professionals, the Office of Disability Operations of the Social Security Administration redetermined in February, 1984, that the plaintiff was entitled to the continuation of SSDI benefits on the grounds that his "disability is continuing."
This hypothetical postulates a realistic set of facts.19 It presents a
situation where the plaintiff has been awarded disability benefits as a result of four separate determinations of temporary total disability, two of which were actually redeterminations of continuing need made by the Social Security Administration pursuant to a procedure requiring periodic review of disability awards. It cannot reasonably be said in any real sense that these facts are suggestive of malingering. Clearly, this is not the type of evidence which is admissible under Corsetti since it is not the kind of evidence which "may be persuasive confirmation of malingering."
Although other evidence of malingering may exist, it may be insuffi-cient to create "a genuine issue [of fact] for trial." At trial, the plaintiff, Corsetti, claimed that he was still totally disabled and that he was unable to hold any kind of job. His testimony was corroborated by two medical doctors and a vocational counselor. 20 The other evidence which the
Su-preme Judicial Court considered sufficient to create "a genuine issue for trial" involved, not the testimony of a physician who examined the plain-tiff on behalf of the defendant or its insurer, but one of the plainplain-tiff's own physicians who had treated him at the time of the injury. This physician testified that when he last saw Corsetti in November, 1981, "the physical findings did not support Corsetti's most recent com-plaints. "21 He further testified that he felt that these complaints "might
be related to Corsetti's desire to make a better case. "22 This is rather
strong, independent "other evidence" suggestive of malingering. Never-theless, there may be instances where even such testimony on the part of the plaintiff's treating physician will be insufficient to create "a genuine issue [of fact] for trial."
When the Court determined that the testimony of one of Corsetti's treating physicians, as summarized above, was sufficient to create "a
19 This hypothetical is based upon the facts of the Corsetti case which were not in the
appeal record before the Supreme Judicial Court, but which the plaintiff was prepared to establish at the retrial, if not via evidentiary admission then by offer of proof. The case was, however, settled before retrial.
20 Corsetti, 396 Mass. at 18, 483 N.E.2d at 802. 21 ld.
genuine issue at trial," it was unaware of the facts set forth in the hypothetical postulated in the previous section. Thus, the Court was unaware of the medical redeterminations made by the Social Security Administration in 1982 and 1984 that Corsetti's disability was continuing. The Court was also unaware that for the eighteen month period from January, 1981, to July, 1982, Corsetti collected no SSDI benefits. During this eighteen month period, Corsetti certainly did not choose to remain out of work because of any SSDI !iisability benefits.
Had the Supreme Judicial Court been presented with the complete and accurate picture of Corsetti's disability determinations, it is not at all certain that the Court would have found the opinion of a single doctor sufficient to create a genuine issue as to malingering. Mter all, the doc-tor's opinion was formulated prior to the two redeterminations of con-tinuing disability which were made by the Social Security Administration in an adversarial setting. The Court ruled on an entirely different factual hypothesis. In light of the requirement that there be "a genuine issue for trial," and the Court's insistence in keeping the exception within "the discretion of the trial judge," it seems clear that, under circumstances similar to those postulated above, a trial court properly could find that even the testimony of a treating physician was an insufficient predicate for the admission of collateral source income evidence.
COMMENT 7
The admissibility of evidence of collateral source income is further limited by the requirement that a plaintiff must volunteer testimony of financial hardship. In explaining its statement that the defendant was entitled "as a matter of right" to the admission of the evidence, the Court emphasized that "our holding 'is not' grounded on its relevance to the
issue of malingering. "23 Instead, the Court predicated its holding on the
self-serving testimony volunteered by Mr. and Mrs. Corsetti that they
were financially worse off after the accident than before:24
The profferred evidence did not bear solely on the question of malingering.
It also directly contradicted Corsetti's testimony, elicited by Corsetti's counsel on direct examination, that, as a result of Corsetti's injuries, his wife was required to work full time up to the time of the trial . . . thus aggravating him, and that he and his wife fought about money ... and it contradicted Margherita Corsetti's testimony that Corsetti and she had a bleak Christmas, partially because of lack of money.25
The Court made it clear in other ways that the evidence of collateral source income would not have been admissible "as a matter of right" absent such testimony. The Court first noted that "several courts have held that evidence of collateral source income is admissible 'where a plaintiff in a personal injury action has volunteered testimony as to
penurious circumstances allegedly resulting from his injury. "'26 It then
stated: "That is precisely the case here."27 After further noting that "the
defendant did not solicit any statement from Corsetti regarding his
finan-cial straits,"28 the Court concluded that "a plaintiff who affirmatively
pleads poverty, 'should be forced to confront the consequences of that
choice on cross-examination.' "29
For the most part, the introduction of collateral source income follow-ing Corsetti remains within the discretion of the trial judge. This means that as a general proposition, evidence of collateral source income is admissible under the exception referred to above in the discretion of the
trial judge to test the credibility of a particular witness. 30 The single
23 /d. at 18, 483 N.E.2d at 803. See supra note 14 and accompanying text.
24 The Court even excerpted in its opinion portions of the testimony which it believed
unfairly prejudiced the defendant and necessitated a new trial because the defendant was prevented from introducing the disability benefits received by Corsetti to impeach his credibility. /d. at 19-20, 483 N.E.2d at 803.
25 Id. at 18-19, 483 N.E.2d at 803 (footnotes omitted). The Court also referred to another
instance where, although a question on cross-examination "called for a 'yes' or 'no' answer, Corsetti volunteered that he did not go to the movies because he could not afford to do so, again focusing on his lack of money as a result of his injuries." /d. at 20, 483 N.E.2d at 803.
26 /d. at 20, 483 N.E.2d at 803-04. 27 /d. at 20, 483 N .E.2d at 804.
2s Id.
departure from this standard occurs only when the plaintiff has volun-teered testimony of financial hardship as a result of his injury. Where such testimony is not volunteered by the plaintiff, the defendant is not
entitled as a matter of right to the admission of such evidence. It is
elementary principles of fairness which give the defendant this right in order to be able to challenge the seriously damaging testimony volun-teered by the plaintiff.
Elementary principles of fairness required that the defendant be permitted to challenge the seriously damaging testimony volunteered by Corsetti by demonstrating that after Corsetti's accident he had more money than he had before. Elementary fairness also required that Corsetti not be shielded from a cross-examination that strongly intended to impeach all of Corsetti's testimony by exposing the falsehood of some of it.31
The major failure of the Corsetti opinion is the complete lack of any
direction by the Supreme Judicial Court to the trial judiciary as to what should be admitted and told to the jury when collateral source income evidence is admitted. The Court's only suggestion was that "a stipulation of the relevant information" "would have been the preferable course;"
otherwise, "appropriate limiting instructions should have been given. "32
The question of the appropriate course for the trial judge raises two issues. The first deals with the scope of the evidence which constitutes "the relevant information" which is to be admitted. The second asks, what are the "appropriate limiting instructions?" Determining the "ap-propriate limiting instructions" is the easier issue to resolve. The quoted phrase makes it clear that the jury must be told that its consideration of the evidence is limited, that is, that it may consider the evidence only as it may relate to the plaintiff's credibility or possible malingering. This much is clear. But the more difficult question is whether the jury should be told anything else. In light of the Court's emphasis on "elemental fairness," it becomes apparent that when evidence of collateral source income is admitted, the jury should be told the reasons for, and not just the amount of, the disability benefits.
In deciding that the collateral source income evidence was admissible
in the context of the Corsetti facts, the Court twice referred to the concept
of "elementary fairness. "33 It is obvious that the Court sought a trial that
is fundamentally fair. Therefore, the only instructions that are appropriate are instructions that satisfy "elementary principles of fairness" to both sides. Action that unfairly favors one side or prejudices another must be avoided.
There is an obvious danger that collateral source income evidence
31 Corsetti, 396 Mass. at 20, 483 N.E.2d at 804. 32/d. at 21, 483 N.E.2d at 804.
COMMENT 9
might be misunderstood or misused by the jury.34 In order to assure
"elementary fairness," these dangers must be addressed. Therefore, the jury must be instructed that a plaintiff's legal right to a tort recovery is not affected by the fact that he has received disability benefits. The jury must further be informed that it must not reduce a plaintiff's verdict because of collateral source benefits already received by the plaintiff. To insure that the jury understands this concept, the better practice would be to tell the jury that there is a lien upon any tort proceeds that will require the plaintiff to reimburse the state or the worker's compensation carrier for the benefits he has received.35 Otherwise, the jury might
become motivated by a desire to avoid an unjust double recovery. It will be noted that these proposals address the very dangers which explain the existence of the rule making evidence of collateral source income generally inadmissible. As an a fortiorari proposition, therefore, these dangers cannot be ignored in the exceptional circumstances when the evidence is to be admitted.
The more difficult issue is determining what should be admitted. Spe-cifically, the question is whether the defense should be permitted to introduce the amount of the disability income received by the plaintiff, without explaining that the plaintiff has received these benefits only because he had been found disabled. Understandably, the defense interest is only in the amount of the disability benefits, not the reason for them. Indeed, it could seriously imperil the defense, on both the veracity and the malingering claims, to have the jury informed that the plaintiff has already been found disabled by an independent tribunal or agency. The benefits sought through the use of the evidence might be outweighed by the costs associated with its use. Yet, this is precisely the instance where the defendant must bite the bullet and decide whether to use or forego the evidence.
Elementary principles of fairness dictate that the defense cannot have it both ways. The defendant cannot seek to introduce evidence of the amount of disability income received and, at the same time, avoid the explanation that the plaintiff received these sums only because it had been administratively determined that he was disabled. Evidence of the sums alone certainly would be misleading to the jury and unduly preju-dicial to the plaintiff. We need only return to our hypotheticaP6 for a
vivid picture of the potential unfairness. On the facts there postulated, the failure to inform the jury of the repeated determinations and
redeter-34 See supra note 13 and accompanying text. See also, EsoAILE, THE CoLLATERAL
SOURCE RULE: A PROPOSAL TO REGULATE ADMISSION OF EVIDENCE TO AVOID PREJUDICE, 68 MASS. L. REV. 102 (1983).
3s Mass. G.L. c. 152, § 46A (Cum. Ann. P.P. 1986).
minations of disability would clearly be prejudicial to the plaintiff. But it
would be more than this. It would be a distortion of the truth. Even if it
is only a half-truth, it would still be deceitfulY To argue to the jury that it should consider the plaintiff a malingerer because it was to his economic benefit to forego work, but not to tell the jury that on four separate occasions administrative tribunals had determined that the plaintiff was unable to return to work, would be deliberately to mislead the jury. Obviously, this is not the purpose of evidentiary rules, whether they are formulated to exclude or to admit evidence. The result is the same even
in the absence of repetitive findings of disability. It is fundamentally
wrong to give the jury only half of a story. Yet informing the jury only of the amount of the benefits does precisely this. A half story would at
best be confusing; at worst, it would be a misleading representation. 38
The only way to avoid confusing the issues, misleading the jury and unduly prejudicing the plaintiff, is either to exclude the collateral source evidence in its entirety or to allow it in its entirety. There is no middle ground. Elementary fairness requires that evidence be complete because parts of documents and portions of events are inherently unreliable and present distorted and incomplete pictures. As stated in Federal Rule 106 of the Federal Rules of Evidence as well as the comparable rule proposed
for Massachusetts:39
When a writing or a recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought, in fairness, to be then considered contemporaneously with it.
This statement is consistent with Massachusetts law and practice.40 The
principle is a simple one. If the jury is to get the picture at all, then elementary principles of fairness require that it get the complete picture. Anything less would violate "elementary fairness."
In conclusion, Corsetti does not make sweeping changes in the law.
Instead it applies an exception, long recognized in Massachusetts law, that permits the admission of evidence of collateral source income, in the discretion of the trial judge, to support the defense of malingering if, and only if, there is other evidence of malingering sufficient to raise "a
genuine issue for trial." The only change made by Corsetti is contained
in its holding that the defendant is entitled as a matter of right to the admission of evidence of collateral source income to impeach the veracity of a plaintiff who has volunteered testimony that he was financially worse off after his injury than before.
37 In the tort law of misrepresentation, a half-truth is often equated with deceit. See,
e.g., RESTATEMENT (SECOND) OF TORTS§ 529. 38 /d.
39 LIACOS, HANDBOOK OF MASSACHUSETTS EVIDENCE, 443 (1981).
COMMENT 11
The considerations underlying the collateral source rule are quite
com-plex.41 In Corsetti, the Supreme Judicial Court addressed only the
ques-tion when the excepques-tion becomes applicable. Unfortunately, it did not address the attendant question of the proper role for the judiciary in overseeing the introduction of the evi!ience to insure that both sides are
treated fairly. Corsetti leaves the development of this supervisory
func-tion of the trial judiciary for future resolufunc-tion. It is clear, however, that
the Court sought by its decision to achieve a trial that is fair for both sides. In order to achieve this result, the trial judiciary cannot admit into evidence the amount of disability benefits that a plaintiff has received without explaining to the jury that these benefits were received by the plaintiff only because he had been found to be disabled. Fundamental fairness requires that if the jury is to get the picture at all, it must get the complete picture.
