Opinion
19-P-1584
09-21-2020
PAULINE LESLIE v. J. ALEXANDER BODKIN & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Pauline Leslie, appeals from judgments, entered by two different Superior Court judges, dismissing her claims against the defendants, and from an order denying her motion to reconsider. This case stems from a motor vehicle accident that occurred in 2010. Leslie filed this action against defendant Doctor J. Alexander Bodkin, who was retained to conduct an independent medical examination (IME) of Leslie pursuant to Mass. R. Civ. P. 35, 365 Mass. 793 (1974). Leslie also filed claims against defendants John R. Barrett and Kingstown Corporation (Kingstown defendants) and defendant Travelers Company of Connecticut (Travelers) under a theory of agency. Acting on Bodkin's motion to dismiss, a judge dismissed the claims against Bodkin on the ground of absolute privilege. Summary judgment was ordered by a second judge in favor of the Kingstown defendants and Travelers. We affirm.
There has been extensive litigation stemming from the accident, including cases filed in Suffolk County, Essex County, and two prior appeals in this court. See, e.g., Leslie v. Travelers Ins. Co., 96 Mass. App. Ct. 1105 (2019); Leslie v. Travelers Ins. Co., 92 Mass. App. Ct. 1104 (2017). There was also an action filed in the United States District Court for the District of Massachusetts. Leslie vs. Superior Court of Mass., U.S. Dist. Ct., No. 17-12384 (D. Mass. Dec. 22, 2017). The underlying facts are set forth in the various judgments and appellate decisions and need not be repeated here. In essence, John R. Barrett, while driving a tractor trailer owned by Kingstown Corporation, rear-ended a car being driven by Leslie and in which her two children were passengers. Travelers was Kingstown's business automobile insurer. Liability was conceded. After a trial on damages, the jury returned a verdict awarding $6,749.29 to Leslie, and $6,414.70 to one of the two children. The other child was not awarded any damages.
The claims included medical negligence, misrepresentation, defamation, negligent infliction of emotional distress, intentional infliction of emotional distress, punitive damages, and violation of G. L. c. 93A.
These claims included medical negligence, misrepresentation, negligent infliction of emotional distress, negligent entrustment, punitive damages, and violation of G. L. c. 93A.
1. Claims against Bodkin. We review the allowance of a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), de novo. Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). We accept the allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008); Baker v. Wilmer Cutler Pickering Hale & Dorr, LLP, 91 Mass. App. Ct. 835, 842 (2017). "The ultimate inquiry is whether the plaintiffs alleged such facts, adequately detailed, so as to plausibly suggest an entitlement to relief." Id., quoting Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012).
In the underlying lawsuit, Leslie claimed, among other things, that she was permanently disabled and suffered from posttraumatic stress disorder rendering her unable to drive, all resulting from the car accident. See generally Leslie v. Travelers Ins. Co., 92 Mass. App. Ct. 1104 (2017). The defendants filed a motion to require Leslie to undergo an IME pursuant to Mass. R. Civ. P. 35. The motion was initially denied, then allowed upon reconsideration. The IME took place in a conference room at the offices of defense counsel because Leslie objected to driving to Bodkin's office. As part of the IME, Bodkin reviewed Leslie's prior medical records and conducted a four-hour examination of Leslie, which was recorded by both Leslie and Bodkin. He also testified by video deposition at the trial. Travelers paid Bodkin.
Leslie alleged that, among other things, Bodkin should not have reviewed her medical records, that he asked her inappropriate questions, conducted himself unprofessionally, was demeaning to her, and recorded her without her knowledge. Bodkin denies the allegations and asserts that Leslie's claims must fail because he is protected by the absolute privilege. Here, all of the statements and conduct in question were made "by a . . . witness in the institution of, or during the course of, a judicial proceeding." Sriberg v. Raymond, 370 Mass. 105, 108 (1976). As such, Bodkin's statements and conduct "are absolutely privileged." Id.
Despite Leslie's argument to the contrary, the IME was in all respects part of a judicial proceeding. Even if Leslie's allegations were true, which we must assume for the purposes of a rule 12 (b) (6) motion, the IME was ordered by a judge, pursuant to a motion, to assess the cause and extent of Leslie's disability. This was necessitated, in part, because the defendants claimed that Leslie was exaggerating her symptoms. Indeed, Leslie's complaints about Bodkin's work are "the very thing[s] against which the privilege is directed." Sullivan v. Birmingham, 11 Mass. App. Ct. 359, 366 (1981). "An absolute privilege provides a complete defense even if the offensive statements are uttered maliciously or in bad faith." Doe v. Nutter, McClennen & Fish, 41 Mass. App. Ct. 137, 140 (1996), citing Correllas v. Viveiros, 410 Mass. 314, 319 (1991). "An absolute privilege is favored because any final judgment may depend largely on the testimony of the party or witness, and full disclosure, in the interests of justice, should not be hampered by fear of an action for defamation." Correllas, supra at 320, citing Restatement (Second) of Torts § 588 comment (a) (1977). The complaint was properly dismissed.
We review the denial of Leslie's motion for reconsideration for an abuse of discretion. See Littles v. Commissioner of Correction, 444 Mass. 871, 879 (2005); Piedra v. Mercy Hosp . , Inc., 39 Mass. App. Ct. 184, 186-188 (1995). A motion for reconsideration filed pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), is "designed to correct judgments which are erroneous because they lack legal or factual justification." Pentucket Manor Chronic Hosp . , Inc. v. Rate Setting Comm ' n, 394 Mass. 233, 237 (1985). Here, Leslie's motion was both devoid of any new information and did not set forth any information that was previously unavailable to her. The motion was properly denied.
2. Claims against the Kingstown defendants and Travelers. We review the grant of summary judgment de novo to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Karatihy v. Commonwealth Flats Dev. Corp., 84 Mass. App. Ct. 253, 255 (2013), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The second judge granted summary judgment on so much of the complaint that alleged liability under a theory of agency, and on count IV of the complaint, which alleged misrepresentation (not based on agency).
Viewing the evidence in the light most favorable to Leslie, she failed to provide any evidence that these defendants exercised any control over Bodkin or that they directed, supervised, or controlled him. See Paradoa v. CNA Ins. Co., 41 Mass. App. Ct. 651, 654-655 (1996). Accordingly, these defendants cannot be vicariously liable for Bodkin's alleged misconduct because no agency relationship existed between them. In the simplest of terms, Leslie's agency allegations are bald assertions, and without more are insufficient to avoid the entry of summary judgment. See Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974) ("Supporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence . . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon mere allegations or denials of his pleading . . .").
Leslie claims that the second judge erred in failing to determine which of the three defendants retained Bodkin. This argument is of no moment as the result is the same regardless of who retained Bodkin.
As to the misrepresentation claim, Leslie must prove that she reasonably relied on the defendants' misrepresentations about Bodkin, and acted upon those representations to her detriment. See Cumis Ins. Soc'y, Inc. v. B.J.'s Wholesale Club, Inc., 455 Mass. 458, 471-473 (2009). Leslie did not set forth any evidence of how she reasonably relied on any misrepresentation, if one was made. See id. Therefore, summary judgment was properly granted.
3. Other claims. Leslie intersperses additional claims and contentions throughout her brief. We have examined all of her points and arguments. That we have not addressed them all means simply that "[w]e find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Leslie's request for costs and expenses is denied.
Order denying motion to reconsider affirmed.
By the Court (Blake, Massing & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: September 21, 2020.