Opinion
No. 14–P–1800.
08-11-2016
Gregory D. GIRARD v. MASSACHUSETTS INSTITUTE OF TECHNOLOGY & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Gregory D. Girard (Mr. Girard) appeals from the dismissal of this action against his former wife, Kristine A. Girard (Dr. Girard), and her employer, the Massachusetts Institute of Technology (MIT). Mr. Girard claims error in (1) the allowance of the defendants' special motion to dismiss his defamation claims; (2) the allowance of the defendants' motion to strike the April 15, 2011, complaint; (3) the denial of his motion to amend the May 25, 2011, complaint and/or for reconsideration of the order dismissing his defamation claims; and (4) the allowance of the defendants' motion for summary judgment with respect to his medical malpractice claims. We affirm in part and reverse in part.
Following the filing of his original complaint, Mr. Girard filed or attempted to file multiple “first amended complaints.” We shall refer to the complaints by their dates to avoid any confusion.
1. Special motion to dismiss. To succeed on a special motion to dismiss brought under G.L.c. 231, § 59H, the anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute, a defendant must first establish, by reference to the pleadings and affidavits, that the claim in issue was based on “petitioning activities alone and ha[s] no substantial basis other than or in addition to the petitioning activities.” Wenger v. Aceto, 451 Mass. 1, 5, 883 N.E.2d 262 (2008), quoting from Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167–168, 691 N.E.2d 935 (1998). If any substantial nonpetitioning misconduct is implicated by the allegations, the special motion to dismiss must be denied. See Wenger, 451 Mass. at 5–6, 8–9, 883 N.E.2d 262.
Here, Dr. Girard, the moving party, failed to make the requisite threshold showing. The judge who decided the anti-SLAPP motion (motion judge) acknowledged that there was a basis for the defamation claim “other than or in addition to the petitioning activities” (i.e., Dr. Girard's statements to her personal friends) . He concluded, however, that the basis was not “substantial” because those statements did not cause the harm Mr. Girard complained of in his complaint. The motion judge's consideration of the element of causation at this early stage of the proceedings was premature. See MacDonald v. Paton, 57 Mass.App.Ct. 290, 295, 782 N.E.2d 1089 (2003) (error to apply Mass.R.Civ.P. 12 [b][6], 365 Mass. 754 [1974], standard in ruling on special motion to dismiss); Burley v. Comets Community Youth Center, Inc., 75 Mass.App.Ct. 818, 822–823, 917 N.E.2d 250 (2009) (judge should focus solely on “nature of the conduct alleged by the plaintiff” and must not consider substantive merits of case). Accordingly, the motion judge erred in dismissing Mr. Girard's defamation claim, as the pre-petitioning confidences Dr. Girard shared with her friends was private conduct that did not fall within the purview of the anti-SLAPP statute. See Office One, Inc. v. Lopez, 437 Mass. 113, 121–122, 769 N.E.2d 749 (2002).
Dr. Girard's subsequent, direct statements to the police and to the courts unquestionably constituted petitioning activities. See McLarnon v. Jokisch, 431 Mass. 343, 349, 727 N.E.2d 813 (2000) ; Keegan v. Pellerin, 76 Mass.App.Ct. 186, 190, 920 N.E.2d 888 (2010).
Dr. Girard correctly asserts that the right of petition has been broadly construed to include “all ‘statements made to influence, inform, or at the very least, reach governmental bodies—either directly or indirectly.’ “ North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862, 898 N.E.2d 831 (2009), quoting from Global NAPS, Inc. v. Verizon New England, Inc., 63 Mass.App.Ct. 600, 605, 828 N.E.2d 529 (2005). Nevertheless, in determining whether statements rise to the level of petitioning, courts look to “the over-all context in which [the statements] were made.” Ibid.
Here, there exists a disconnect between Dr. Girard's private statements to her friends and her subsequent petitioning activities. Dr. Girard made the statements claimed to be defamatory at a February 7, 2010, party. She made them to her friends with no expectation of her friends contacting law enforcement officials on her behalf. Where Dr. Girard did not view her own statements as petitioning or intended to reach higher authorities, we fail to see how petitioning protection could extend to them.
By her own account, Dr. Girard made the same statements on other occasions prior to her petitioning as part of the “ongoing discussion” with her friends about Mr. Girard.
Even if Dr. Girard's statements to her friends mirrored those she later made to the police, she did not make them “in connection with” issues under consideration or review in a pending governmental proceeding. G.L.c. 231, § 59H, inserted by St.1994, c. 283, § 1. Compare Plante v. Wylie, 63 Mass.App.Ct. 151, 158–159, 824 N.E.2d 461 (2005) (attorney's statements communicated directly to other private citizens in effort to settle controversy held protected). Indeed, Dr. Girard's “mirror image” statements to her friends possessed none of the characteristics of petitioning activity. Wynne v. Creigle, 63 Mass.App.Ct. 246, 253–254, 825 N.E.2d 559 (2005) (firefighter's widow's statements to media were “mirror images” of ones made during and “in connection with” her earlier petitioning activities and qualified for protection; statements also independently qualified for protection because they “were sufficiently tied to and in advancement of her petition for benefits” under consideration by Legislature and Governor at same time).
As herein relevant, the statute defines petitioning activity to include “any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding.” G.L.c. 231, § 59H.
2. Motions to strike and to amend. We discern no abuse of the judge's wide discretion in denying Mr. Girard's March 18, 2014, motion to amend the complaint. See Pielech v. Massasoit Greyhound, Inc., 441 Mass. 188, 197–198, 804 N.E.2d 894 (2004). While leave to amend should be “freely given when justice so requires,” Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974), the judge had good reason here for denying Mr. Girard's motion. See Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 291–292, 361 N.E.2d 1264 (1977). First, the judge's finding that Mr. Girard exhibited utter disregard for the requirements of Mass.R.Civ.P. 8(a)(1), 365 Mass. 749 (1974), was grounds, standing alone, for denying the motion. See Mass.R.Civ .P. 8(e)(1), 365 Mass. 749 (1974). Compare Schaer v. Brandeis Univ. ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000) ; Driscoll v. Board of Trustees of Milton Academy, 70 Mass.App.Ct. 285, 299, 873 N.E.2d 1177 (2007).
Even assuming that Mr. Girard's challenge to the order striking the April 15, 2011, complaint was adequately presented, we conclude that the ruling fell within appropriate bounds of judicial discretion. See Ryan v. Hughes–Ortiz, 81 Mass.App.Ct. 90, 101 n. 14, 959 N.E.2d 1000 (2012). The contents of that complaint added new factual allegations and theories of liability, plainly exceeding the scope of the leave to amend given to Mr. Girard.
The operative complaint at the time of Mr. Girard's motion to amend was sixteen pages in length. His proposed “second amended” complaint contained 429 separately-numbered paragraphs covering ninety-seven pages. Heavily laden with inappropriate legal arguments, the document contained several new tort claims and theories of liability. Mr. Girard limits his appeal to so much of the ruling denying leave to add direct negligence claims against MIT for the alleged violations of its medical policies and manuals.
Second, the judge justifiably concluded that Mr. Girard waited too long to bring the motion. To the extent that Mr. Girard endeavors to blame his delinquency on MIT's “prolonged concealment” of its medical policies and manuals, the judge, who was intimately familiar with the parties' protracted discovery disputes, did not find conduct by MIT warranting sanction. Further, even if the documents produced by MIT were late, Mr. Girard failed to take advantage of the ample opportunity he had to add direct negligence claims, including claims relating to the medical policies and manuals.
Mr. Girard's attempt to amend the complaint occurred forty months after the commencement of these proceedings, over two years after the tracking order deadline for amendment, two months after the expiration of the thrice-extended discovery deadline, and nearly a year after the tracking order deadline for the disposition of the case. Mr. Girard filed the motion shortly after the defendants had served him with a motion for summary judgment.
As the judge noted, the direct malpractice claims in the proposed second amended complaint were similar to those in the April 15, 2011, complaint struck by the judge. Moreover, in November, 2013, Mr. Girard received thirty policies from MIT as well as an adverse ruling denying his motion to compel the production of additional documents (with the exception of those voluntarily produced by MIT). After MIT provided additional policies and two manuals, Mr. Girard waited four more months to file his motion to amend. He did so despite a warning from the judge at the hearing on the motion to compel on the need to file a motion to amend if he wished to add direct claims against MIT.
We also see no support for the contention that the judge misconstrued the nature of Mr. Girard's claims against MIT. The original November 12, 2010, complaint, as we read it, stated a medical malpractice claim against MIT on a respondeat superior basis only. Even if the factual allegations of the May 25, 2011, complaint suggested that Mr. Girard was asserting a direct negligence claim against MIT, his attorney put any uncertainty to rest by his statements to the medical malpractice tribunal on September 16, 2011.
In response to a question from the judicial member of the tribunal as to whether Mr. Girard had an expert with respect to MIT, Mr. Girard's attorney stated, “The legal theory upon which we are relying is respondeat superior which is the employer is responsible for the obligations—for the failures of its employee in the course of [Dr. Girard] providing services. [Dr. Girard] was employed as a psychiatrist by MIT and he was receiving care from MIT under their MIT health plan. So that which [Dr. Girard] did, [Dr. Girard] did through MIT and that's the basis for MIT's obligations if you will.”
3. Motion for summary judgment. Finally, we review the judge's decision on summary judgment de novo, and conclude that the judge erred in finding that Mr. Girard's medical malpractice claims failed, on the essential element of causation, as matter of law. See Doe v. Boston Med. Center Corp., 88 Mass.App.Ct. 289, 291, 36 N.E.3d 1258 (2015). Mr. Girard advanced various somewhat complicated malpractice claims, some in the alternative, asserting multiple breaches of the standard of care provided over a ten-year period. On this record, Dr. Girard failed to show that Mr. Girard could not prevail on any of the theories advanced. For example, a jury could conclude that Dr. Girard, serving in the capacity of Mr. Girard's sole psychiatrist in 2010, should have treated Mr. Girard's deteriorating mental instability rather than disclosing to her friends and later to the police what could be seen as his confidential medical information. A jury could further find that it was reasonably foreseeable that Dr. Girard's friends would, out of concern for her, republish to law enforcement authorities such confidential medical information, including his deteriorating mental health and stockpiling of weapons. The jury could further find that the authorities and the courts would take very seriously allegations stemming from a psychiatrist about an “increasingly unstable” man possessing grenades, leading to the raid of Mr. Girard's house and what followed.
We agree with the judge's conclusion that Mr. Girard raised a triable issue of fact on the question whether he entered into a doctor-patient relationship with Dr. Girard.
Alleged breaches of duty included prescribing medications without reviewing the medical records or consulting other doctors, treating Mr. Girard despite a conflict of interest, failing to maintain medical records, disclosing confidential medical information without privilege, failing to treat his deteriorating psychiatric condition and abruptly abandoning her patient in February, 2010 (or, in the alternative, misrepresenting his clinical status as a prelude to the divorce proceedings). Both experts tied Dr. Girard's negligence to the significant range of damages sought by Mr. Girard in this case, including damages for physical injuries, loss of liberty, emotional distress, loss of reputation, and impaired earning capacity.
During a telephone call on February 8, 2010, Dr. Girard informed the police that Mr. Girard had been acting “extremely paranoid” lately, and was exhibiting “rage” toward her. She quoted delusional statements made by Mr. Girard about the imminence of martial law, and the acceptability of shooting people in the head “because traitors deserve it.” Dr. Girard asked how to get Mr. Girard evaluated for his recent behavior. On the following day, a friend placed an anonymous call to the Boston Police Crime Stoppers hotline, reporting that Dr. Girard had been forced to leave her home because Mr. Girard had become “increasingly delusional and was possibly bipolar.”
In his affidavit submitted in support of his first application for a search warrant, Detective Richard Newton averred that Dr. Girard had indicated to the police that her husband had become “increasingly unstable” and was “speaking irrationally.” Detective Newton included the traitor quotation attributed to Mr. Girard, see note 13, supra, further noting that Dr. Girard was a psychiatrist who felt “strongly about imminent violence.” In his affidavit in support of his second application for a search warrant, Detective Newton included the information that Dr. Girard's friend reported to the hotline. See note 13, supra.
Perhaps Dr. Girard never diagnosed her husband with paranoia or delusions and used those terms in a nonmedical sense. Perhaps also law enforcement authorities, tipped off about the arsenal of weapons from three separate sources, would have acted in the same way even without the disclosure of confidential medical information or, maybe, as the judge concluded, all of Mr. Girard's damages flowed from the independent decisions and actions of individuals other than Dr. Girard. However posited, Mr. Girard was entitled to have these questions sorted out and decided by a jury.
Absent the inclusion in the record appendix of copies of his motion to recuse and the judge's decision denying it, we decline to address Mr. Girard's request that the case be assigned to another judge for trial.
4. Conclusion. We affirm the order entered on May 23, 2011, allowing the motion to strike the amended complaint. We reverse the order entered on August 13, 2012, allowing the special motion to dismiss count III of the amended complaint dated May 25, 2011. We reverse so much of the order entered on April 9, 2014, denying the plaintiff's motion for reconsideration of the order entered on August 13, 2012, and affirm so much of the April 9, 2014, order denying the motion to amend the complaint. Summary judgment for the defendants on the medical malpractice claims is reversed. The case is remanded for further proceedings consistent with this memorandum and order.
Mr. Girard's request for attorney's fees is denied.
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So ordered.