Mass. R. Evid. 409

As amended through October 3, 2024

Section 409 - Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses

(a)Expressions of Sympathy in Civil Cases. Statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.

(b)Payment of Medical and Similar Expenses. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

(c)Medical Malpractice Claims. Any expression of benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern made by a health care provider, a facility, or an employee or agent of a health care provider or facility to the patient, a relative of the patient, or a representative of the patient, and that relates to an unanticipated outcome, shall be inadmissible as evidence in a medical malpractice action, unless the maker of the statement, or a defense expert witness, when questioned under oath during the litigation about facts and opinions regarding any mistakes or errors that occurred, makes a contradictory or inconsistent statement as to material facts or opinions, in which case the statements and opinions made about the mistake or error shall be admissible for all purposes.

Mass. Guid. Evid. 409

Subsection (a). This subsection is taken verbatim from G. L. c. 233, § 23D. See Gallo v. Veliskakis, 357 Mass. 602, 606 (1970); Casper v. Lavoie, 1 Mass. App. Ct. 809, 810 (1973). See also Denton v. Park Hotel, Inc., 343 Mass. 524, 528 (1962) (expressions of sympathy have "no probative value as an admission of responsibility or liability," and "[c]ommon decency should not be penalized by treating such statements as admissions"). But see Nunes v. Duffy, 101 Mass. App. Ct. 460, 463 (2022) (only statements of sorrow or apology are inadmissible, not admissions of fault or liability).

Subsection (b). This subsection is derived from Gallo v. Veliskakis, 357 Mass. 602, 606 (1970), and Wilson v. Daniels, 250 Mass. 359, 364 (1924). This subsection is based on the public policy of encouraging a person to act "as a decent citizen with proper humane sensibilities" without having to admit liability (citations omitted). Lyons v. Levine, 352 Mass. 769, 769 (1967). Statements that accompany offers of payment are not excluded under this section if otherwise admissible. See Gallo, 357 Mass. at 606 (defendant's statements of sympathy and that he would take care of the medical bills were inadmissible because they "had no probative value as an admission of responsibility or liability" [citations omitted]). Cf. G. L. c. 231, § 140B (evidence of advanced payments to injured person by insurer is not admissible to prove liability).

Subsection (c). This subsection is taken nearly verbatim from G. L. c. 233, § 79L (effective November 4, 2012).