Opinion
Civil Action CV-13-206
02-14-2014
PAUL LEVESQUE, et al, Plaintiffs v. DANIEL G. LILLEY, ESQ., et al, Defendants
WALTER MCKEE, ESQ. MCKEE BILLINGS LLC PA LEE BALS, ESQ. JENNIE CLEGG, ESQ. MARCUS CLEGG & MISTRETTA PA MARK FRANCO, ESQ. THOMPSON & BOWIE
WALTER MCKEE, ESQ. MCKEE BILLINGS LLC PA
LEE BALS, ESQ. JENNIE CLEGG, ESQ. MARCUS CLEGG & MISTRETTA PA
MARK FRANCO, ESQ. THOMPSON & BOWIE
ORDER
Thomas D. Warren Justice
Before the court is defendants' motion to dismiss the complaint filed by Paul and Ida Levesque.
For purposes of a motion to dismiss, the material allegations of the complaint must be taken as admitted. The complaint must be read in the light most favorable to the plaintiff to determine if it sets forth elements of a cause of action or alleges facts that would entitle plaintiff to relief pursuant to some legal theory. A claim shall only be dismissed when it appears beyond doubt that a plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim. E.g., In re Wage Payment Litigation, 2000 ME 162 ¶ 3, 759 A.2d 217.
The defendants' motion contends that the Levesques' settlement of their claim against CMMC upon remand precludes the Levesques, as a matter of law, from proving that the judgment they initially recovered was based on negligence on the part of Dr. Rietschel as opposed to negligence on the part of CMMC nurses. The court disagrees. On the face of the complaint it is at least possible that, through expert testimony or other evidence, the Levesques will be able to prove that it is more likely than not that the verdict they received at trial was based on Dr. Rietschel's negligence as opposed to negligence on the part of the CMMC nurses and that, once foreclosed from proceeding on the basis of Dr. Rietschel's negligence, the Levesques would have had a considerably weaker case if they had gone to a second trial.
The complaint does not allege that the claim against CMMC was settled on remand but defendants have pointed to a docket entry to that effect. The authenticity of the docket entry has not been challenged and plaintiffs do not dispute the existence of a settlement with CMMC. Accordingly, the docket entry may be considered on the motion to dismiss. Moody v. State Liquor & Lottery Commission, 2004 ME 20 ¶ 9, 843 A.2d 43.
The entry shall be:
Defendants' motion to dismiss is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).