Opinion
19-P-1070
04-02-2020
COMMONWEALTH v. David BAXTER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2018, we vacated a Superior Court judgment and order of discharge dismissing the Commonwealth's petition to commit the defendant, David Baxter, as a sexually dangerous person. Commonwealth v. Baxter, 94 Mass. App. Ct. 587 (2018) (Baxter I ). In June 2019, a Superior Court judge reported to us, pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), three questions that essentially ask whether the Superior Court judge's earlier ruling -- that the petition should be dismissed -- was correct. As our earlier opinion answered that question, the law of the case doctrine requires that the earlier ruling remain vacated. Accordingly, the matter must proceed in the Superior Court.
"[A] trial judge may not report a question of law in a civil action but may report the propriety of a ruling or order, in circumstances described in rule 64." Jacobson v. Mailboxes Etc. U.S.A., 419 Mass. 572, 574 n.4 (1995). "The basic issue central to any report made under rule 64 is the correctness of the judge's finding or order." Hunter v. Cayer, 61 Mass. App. Ct. 725, 727 (2004), quoting Globe Newspaper Co. v. Massachusetts Bay Transp. Auth. Retirement Bd., 412 Mass. 770, 772 (1992).
1. Law of the case. "An issue ‘once decided, should not be reopened "unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice." ’ " King v. Driscoll, 424 Mass. 1, 8 (1996), quoting United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st. Cir.), cert. denied, 502 U.S. 862 (1991). Accord Kitras v. Aquinnah, 474 Mass. 132, 146 (2016).
Here, one of the qualified examiners appointed by the Department of Correction (department), Dr. Robert Joss, belonged to the same psychology practice as the expert retained by the Commonwealth to show probable cause to proceed. The defendant chose not to object to this appointment, in the hope that Dr. Joss would find the defendant not sexually dangerous. Dr. Joss, however, opined that the defendant was sexually dangerous, albeit for somewhat different reasons than the probable cause expert.
The motion judge struck Dr. Joss's report on the basis of an appearance of a conflict of interest and ordered the appointment of a new qualified examiner. The motion judge explicitly withheld any ruling on the admissibility of Dr. Joss's testimony at trial. The motion judge did not find an actual conflict of interest or a violation of the qualified examiner's professional ethics. See Baxter I, 94 Mass. App. Ct. at 590-591. Indeed, members of the same professional practice have been involved in prior cases. See R.B., petitioner, 479 Mass. 712, 714 (2018).
The other qualified examiner appointed at the same time as Dr. Joss opined that the defendant was not sexually dangerous. The expert appointed after the judge struck Dr. Joss's report also opined that the defendant was not sexually dangerous.
In Baxter I, we rejected the proposition that "the mere appearance of conflict, without a finding of any actual conflict, is sufficient reason to disqualify an expert witness from testifying." Baxter I, 94 Mass. App. Ct. at 591. Although we inartfully phrased the principle in terms of testimony, the thrust of our opinion was that, especially where the defendant made no attempt to disqualify the qualified examiner before he rendered his opinion, a mere appearance of a conflict is not a proper basis for disregarding an expert's opinion in a sexually dangerous person case. As that holding requires the conclusion that the motion judge erred in striking Dr. Joss's report and ultimately dismissing the petition, the law of the case doctrine applies, and these decisions remain vacated.
This is not to suggest that the practice of appointing a qualified examiner from the same practice as the probable cause expert is prudent. As this case demonstrates, this practice may result in prolonged litigation, delaying the trial, and likely will occupy an inordinate amount of attention at trial. We were advised at oral argument that a new contractor is now making the assignments of qualified examiners. The Commonwealth would be well advised to consider raising the prudence of this practice with the department.
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2. Conclusion. As we held in Baxter I, the motion judge erred in striking Dr. Joss's report and dismissing the petition for commitment. Accordingly, we answer the report by stating that the motion judge erred in these rulings and that the case should proceed in the Superior Court. The report is discharged and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded.