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B14 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 286 Continued from page B13 Handicap discrimination - Misconduct Where a plaintiff filed suit alleging discrimination on the basis of disability (bipolar disorder),judgment was properly entered for the defendant employer on the ground that the plaintiff’s egregious misconduct in the workplace rendered him an unqualified handicapped person. Mammone v. President and Fellows of Harvard College (Lawyers Weekly No. 10-081-06) (47 pages) (Cordy, J.) (Greaney, J., dissenting) (SJC) Case heard by Gants, J., on a motion for summary judgment; entry of judgment dismissing the plaintiff’s complaint ordered by Brassard, J., in Superior Court. Betsy L. Ehrenberg and Rebecca G. Pontikes for the plaintiff; John P. Coakley and Richard J. Riley for the defendant; the following submitted briefs for amici curiae: Beverly I. Ward and John Lozada for Massachusetts Commission Against Discrimination; Susan Stefan for Center for Public Representation and others (Docket No. SJC-09609) (May 12, 2006). Harassment - Third party Where an employer was held liable for failing to protect an employee from harassment by one of the employer’s subcontractors, the finding of liability must be reversed on the ground that the employer took reasonable remedial steps. Modern Continental/Obayashi v.Massachusetts Commission Against Discrimination,et al. (Lawyers Weekly No. 10-149-05) (33 pages) (Sosman, J.) (SJC) Case heard by Ball, J., on a motion for judgment on the pleadings. Richard D. Wayne for the plaintiff; Beverly I. Ward for Massachusetts Commission Against Discrimination; James B. Cox for Whatleigh Edmands; John D. O’Reilly III, Karl J. Gross and James F. Grosso, for Associated General Contractors of Massachusetts, Inc., and others, amici curiae, submitted a brief (Docket No.SJC-09356) (Sept. 7, 2005). MCAD - Emotional distress - Counsel fees - Prejudgment interest Where a Superior Court judge upheld a finding by the Massachusetts Commission Against Discrimination that the defendant Wakefield Municipal Gas & Light Department had discriminated against the plaintiff employee on the basis of age, the judgment must be vacated to the extent that it includes emotional distress damages, as there was insufficient evidence to support an award of such damages. DeRoche v.Massachusetts Commission Against Discrimination, et al. (Lawyers Weekly No. 10- 097-06) (27 pages) (Greaney,J.) (SJC) Cases heard by Hines,J.,on motions for judgment on the pleadings; motion for attorney’s fees and costs heard by Neel,J.,J.,in Superior Court.Nicholas J.Scobbo Jr. and Ann Ryan-Small for Wakefield Municipal Gas & Light Department; Seth H.Hochbaum for the plaintiff; Beverly I. Ward for Massachusetts Commission Against Discrimination; the following submitted briefs for amici curiae: Thomas F. Reilly and Peter Sacks for the commonwealth; James S. Weliky for National Employment Lawyers’ Association, Massachusetts Chapter (Docket No. SJC-09619) (June 12, 2006). PROFILES OF THE JUSTICES MEPA - Teachers Where two plaintiff women teachers filed suit,claiming that the defendant school district discriminated against them with regard to salary because of their gender and thus violated the Massachusetts Equal Pay Act, we hold that a judge erred in granting the plaintiffs relief, as the evidence introduced at trial did not support their claim. Silvestris v.Tantasqua Regional School District (and a companion case) (Lawyers Weekly No.10- 089-06) (32 pages) (Spina, J.) (SJC) Cases heard by Carhart, J., in the Superior Court. Marie E. DeLuzio and Karen W.Peters for defendant Tantasqua Regional School District; Cornelius J.Moriarty II for plaintiffs Joanne Silvestris and Valerie A.Goncalves;Danielle Y.Vanderzanden and Douglass C. Lawrence, on brief, for amicus curiae Associated Industries of Massachusetts; Thomas F.Reilly,Catherine C.Ziehl and Zoe Butler-Stark,on brief,for the amicus curiae Attorney General; Sara Smolik, Robert Mantell and Elizabeth A. Rodgers, on brief, for the amicus curiae National Employment Lawyers Association, Massachusetts Chapter (Docket No. SJC-09540) (May 18, 2006). Retaliation - Hostile work environment - Continuing violation - ‘Cuddyer’ Where a jury found in favor of a plaintiff MBTA employee on claims of hostile work environment and unlawful retaliation, a new trial with respect to damages must be ordered,as the defendant is entitled to a jury instruction regarding the standard set forth in Cuddyer v.Stop & Shop Supermarket Co., 434 Mass.521 (2001). In upholding the jury’s liability determination, we conclude that retaliation claims are subject to the continuing violation doctrine. Clifton v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 10-197-05) (21 pages) (Greaney, J.) (SJC) Case tried before Gants, J., in Superior Court. Kevin G. Powers and Robert S. Mantell for the plaintiff; Walter M. Foster and Matthew J. Walko for the defendant; the following submitted briefs for amici curiae: Marisa Campagna, Theresa Finn-Dever and James S. Weliky for National Employment Lawyers Association; Paul H. Merry and Angela Ciccolo for Massachusetts Employment Lawyers Association & another (Docket No. SJC-09462) (Dec. 21, 2005). Retaliation - Internal complaints Where plaintiff employees of a defendant restaurant claim that they were retaliated against after complaining that the defendant was violating a tip-pooling statute,the defendant should not have been awarded summary judgment,as G.L.c.149,§148A prohibits employers from retaliating against employees for making internal allegations of wage violations,even if those employees never brought their allegations to the attention of the Attorney General. Smith,et al.v.Winter Place LLC,et al.(Lawyers Weekly No.10-128-06) (10 pages) (Cordy,J.) (SJC) Motion for summary judgment was heard by Holtz, J.; question of law reported by Gants, J., in Superior Court. Shannon Liss-Riordan for the plaintiffs; Gordon P. Katz for the defendants; the following submitted briefs for amici curiae: John E.Coyne and Kevin P.Sweeney for Massachusetts Restaurant Association; Ingrid Nava, Audrey R. Richardson, Patti A. Prunhuber and Donald J. Siegel for Greater Boston Legal Services & others; Julia J. Carabilo and Andrea C. Kramer for The Women’s Bar Association of Massachusetts (Docket No. SJC-09544) (Aug. 1, 2006). JUSTICE MARTHA B. SOSMAN Appointed to SJC: 2000 Will reach retirement age: 2020 Majority opinions written this year: 7 Dissenting opinions written this year: 0 Total dissenting votes cast: 0 Notable decision: In the Matter of a Grand Jury Subpoena (Lawyers Weekly No. 10-106-06), which determined that the spousal privilege statute only applied to trial testimony, not to a murder suspect's wife who was seeking to avoid testifying in a grand jury proceeding against her husband. Volunteers - Harassment Where a plaintiff volunteer employee brought suit under G.L.c. 214, §1C alleging sexual harassment by a defendant co-worker, the defendant was properly awarded summary judgment, as volunteers are not covered by the statute. Lowery v. Klemm (Lawyers Weekly No. 10- 068-06) (15 pages) (Spina, J.) (SJC) Case heard by McLaughlin, J., on a motion for summary judgment. Lee M. Berger for the defendant; Kevin M.Orme for the plaintiff (Docket No.SJC- 09580) (April 21, 2006). Environmental Groundwater discharge permit - Pond Where plaintiffs challenged a decision by the defendant Department of Environmental Protection upholding the codefendant Edgartown Wastewater Commission’s issuance of a groundwater discharge permit for the operation of a municipal wastewater treatment plant,we conclude that the DEP’s decision was properly affirmed in Superior Court, as (1) the DEP did not erroneously interpret the applicable regulations and (2) there was no error in the exclusion of certain cross-examination testimony. Friends and Fishers of the Edgartown Great Pond, Inc., et al. v. Department of Environmental Protection, et al. (Lawyers Weekly No. 10- 095-06) (24 pages) (Ireland,J.) (SJC) Case heard by Walker, J., on a motion for judgment on the pleadings. Douglas H. Wilkins for Friends & Fishers of the Edgartown Great Pond, Inc.; Michael S.Nuesse for Group of Ten Citizens; Siu Tip Lam for Department of Environmental Protection; Lisa C. Goodheart and Ronald H. Rappaport for Edgartown Wastewater Commission (Docket No. SJC-09570) (June 1, 2006). Evidence Expert - New trial Where (1) a jury returned a verdict in favor of the defendant in a medical malpractice case and (2) the plaintiff later moved for a new trial on the theory that a defense expert had provided false and misleading testimony,an order allowing this motion (and imposing sanctions on the defendant and the expert witness) must be reversed. Wojcicki v.Caragher (Lawyers Weekly No.10- 119-06) (25 pages) (Spina, J.) (SJC) Case tried before Kottmyer,J.; motion for a new trial heard by her. William J. Dailey Jr. and John M. Dellea for Frederick Hochberg; David M. Gould and Sean E. Capplis for Joan E. Caragher; David W. White-Lief and Marc L.Breakstone for the plaintiff (Docket No. SJC-09565) (July 11, 2006). Expert - Standard of care - Medical malpractice Where a judge awarded a defendant physician summary judgment in a medical malpractice case,this judgment should be affirmed in light of the plaintiffs’ failure to submit expert evidence on the issue of standard of care. Palandjian, et al. v. Foster (Lawyers Weekly No.10-033-06) (19 pages) (Spina,J.) (SJC) Case tried before Zobel,J.,in Superior Court.Kenneth W. Salinger and Raymond J. Kenney Jr. for the defendant; John B. Flemming, Joseph P. Musacchio and Camille F. Sarrouf for the plaintiffs (Docket No. SJC-09562) (Feb. 21, 2006). Hearsay - Confrontation - Probation revocation - ‘Crawford’ Where a judge, relying in part on hearsay statements contained in a police report, ordered a defendant’s probation revoked,this order should be affirmed because the right of confrontation set out in Crawford v. Washington, 541 U.S. 36 (2004) does not apply to probation revocation proceedings. Commonwealth v. Wilcox (Lawyers Weekly No. 10-026-06) (15 pages) (Cowin, J.) (SJC) Proceeding for revocation of probation heard by Baylor,J.,in District Court.Thomas J.Iovieno for the defendant; Michael J. Markoff for the commonwealth (Docket No. SJC-09513) (Feb. 9, 2006). Hearsay - Probation revocation Where a judge relied on hearsay statements in revoking a defendant’s probation,there was no error, as the evidence was reliable. Affirmed. Commonwealth v. Nunez (Lawyers Weekly No.10-027-06) (10 pages) (Cowin,J.) (SJC) Proceeding for revocation of probation heard by Gailey,J., in District Court.Lisa M.Sheehan for the defendant on appeal; Seema Malik Brodie for the commonwealth (Docket No. SJC-09460) (Feb. 9, 2006). Identification - ‘Showup’ Where a defendant has been convicted of assault with intent to rape a child under the age of sixteen years, assault with intent to kidnap and assault and battery,the convictions should be affirmed because the defendant has not shown that the one-on-one “showup”identification by the victim was “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny the defendant due process of law. Commonwealth v. Martin (Lawyers Weekly No. 10-123-06) (56 pages) (Cowin, J.) (Cordy, J., with whom Marshall, C.J., and Ireland, J., join, dissenting) (SJC) Pretrial motion to suppress evidence heard by Dolan,J.; motion to dismiss heard by Connon, J.; cases tried before Graham, J., in Superior Court.J.Thomas Kirkman for the commonwealth; Edward J. DeAngelo for the defendant; David M. Skeels, for Committee for Public Counsel Services,amicus curiae,submitted a brief (Docket No. SJC-09585) (July 19, 2006). Latent fingerprints Where a defendant’s motion to exclude fingerprint evidence was denied,that ruling must be reversed on the ground that the commonwealth did not establish a sufficient foundation for the admission of expert evidence regarding latent fingerprints. Commonwealth v. Patterson (Lawyers Weekly No.10-198-05) (44 pages) (Cordy,J.) (SJC) Pretrial motion to suppress evidence heard by Hinkle,J.,in Superior Court.John H.Cunha Jr.,Helen Holcomb and Charles Allan Hope for the defendant; Donna Jalbert Patalano for the commonwealth; the following submitted briefs for amici curiae: Robert C. Cosgrove for District Attorney for the Berkshire District and others; David M. Siegel, Stanley Z. Fisher and Daniel Givelber for New England Innocence Project and others; Lisa J.Steele for National Association of Criminal Defense Lawyers and others;LaDonna J.Hatton and Christopher Pohl for Secretary of Public Safety (Docket No. SJC-09478) (Dec. 27, 2005). Prior bad acts - Assault and battery Where a defendant was convicted of assault and battery,the conviction must be affirmed be-
Cite this page 35 MLW 287 | www.masslawyersweekly.com Subscribe Today - Call 1-800-451-9998 September 25, 2006 | Massachusetts Lawyers Weekly | B15 cause the trial court committed no error by admitting evidence of the defendant’s prior bad acts. Commonwealth v. Butler (Lawyers Weekly No. 10-193-05) (13 pages) (Greaney, J.) (SJC) Case tried before Rufo, J., in District Court. Amanda Lovell and Catherine N.Tucker for the commonwealth; Daniel F. de Abreu for the defendant (Docket No.SJC-09551) (Dec.20,2005). Psychiatric testimony - Sex offender Where a defendant, charged with being a sexually dangerous person, was denied an opportunity to present psychiatric evidence based on personal interviews with his own psychiatric expert, this was not a due process violation given that the defendant exercised his right to refuse to be interviewed by two court-appointed qualified examiners. Commonwealth v. Connors (Lawyers Weekly No. 10-124-06) (12 pages) (Ireland, J.) (SJC) Pretrial motion to present certain psychiatric evidence heard by Burnes, J.; case tried before her. Edward B. Fogarty for the defendant; Sheryl F. Grant for the commonwealth (Docket No. SJC- 09610) (July 19, 2006). chusetts Public Interest Research Group (Docket No. SJC-09622) (Aug. 23, 2006). Excess coverage - Insurers Insolvency Fund - Exhaustion Where (1) a plaintiff manufacturer, facing potential liability for asbestos-related injuries, filed a complaint seeking a declaration that its excess insurance providers had a duty to defend and indemnify and (2) a judge ruled that, with respect to a series of policies issued by a now-insolvent insurance company,the ‘trigger of coverage’ is bodily injury occurring during the policy period, we conclude that, as to two of those policies, coverage is triggered by asbestos exposure or inhalation,and not by bodily injury, during the policy period. We go on to hold that the judge was correct in ruling that: the Massachusetts Insurers Insolvency Fund’s liability for the excess insurer’s duties to defend and indemnify is not triggered until the policyholder has exhausted the limits of all applicable solvent excess policies; and that a settlement agreement with a solvent carrier for less than the policy’s stated limits does not constitute exhaustion. A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund (Lawyers Weekly No. 10- 184-05) (37 pages) (Greaney, J.) (SJC) Martin F. Gaynor III and Nicholas D. Stellakis for the plaintiff; Joseph C.Tanski,Gregory P.Deschenes, Gregg A. Rubenstein and Christine Vargas Suthoff for the defendant. The following submitted briefs for amici curiae: Laura A.Foggan, Alicia C. Ritter and Michael R. Coppock for Complex Insurance Claims Litigation Association; David L.Elkind,Elizabeth A.Sherwin,John A. Gibbons, Martin C. Pentz, Karen L. Crocker, Michael P. Angelini and Vincent F. O’Rourke Jr. for Massachusetts Electric Company and another (Docket No. SJC-09498) (Dec. 12, 2005). PIP - Jury trial Where (1) a plaintiff medical provider filed suit seeking payment for services under the personal injury protection (PIP) program and (2) the defendant insurance company requested a jury trial, that request was correctly granted under G.L.c. 90, §34M. Boehm v.The Premier Insurance Co.(Lawyers Weekly No. 10-082-06) (6 pages) (Marshall, C.J.) (SJC) Case tried before Dowling, J., in District Court. Francis A. Gaimari for the plaintiff; Christopher M. Mountain for the defendant (Docket No. SJC-09638) (May 12, 2006). Pollution exclusion - Oil truck - ‘In transit’ Where (1) oil leaked from a plaintiff policyholder’s delivery truck while it was parked overnight, (2) the policyholder sought coverage under a commercial automobile insurance policy issued by the defendant insurance company and (3) the insurer denied coverage on the basis of a pollution exclusion clause referring to pollutants ‘stored ... upon the covered auto,’ the insurance company acted unjustifiably in light of the fact that the policy impos- Continued on page B16 Rape - ‘First complaint’ Where a defendant has been convicted of child rape and indecent assault and battery,the convictions should be affirmed, as the trial judge committed no error in admitting “fresh complaint” evidence. Commonwealth v.King (Lawyers Weekly No. 10-158-05) (47 pages) (Cowin, J.) (SJC) Cases tried before Patrick F. Brady, J., in Superior Court. Robert O. Berger III for the defendant; Mary E. Lee for the commonwealth; the following submitted briefs for amici curiae: Lisa J. Steele for The National Association of Criminal Defense Lawyers; William J. Meade for District Attorney for the Bristol District and others; Djuna E.Perkins for Jane Doe,Inc.,and others; Jane Larmon White for Committee for Public Counsel Services; Wendy J. Murphy for Victim Advocacy and Research Group (Docket No. SJC- 09417) (Sept. 29, 2005). Unavailable witnesses - Out-of-court statements Where a defendant has been convicted of assault and battery, the judgment must be vacated and a new trial ordered,as the judge erred in permitting police witnesses to testify as to statements made at the scene by two eyewitnesses (the defendant’s son and daughter) who were unavailable at trial. Commonwealth v.Rodriguez (Lawyers Weekly No.10-143-05) (3 pages) (Rescript) Appealed from a decision by Brennan,J.,in District Court. Melissa P.White Ellis for the defendant; Catherine Langevin Semel and Jana L.DiNatale for the commonwealth (Docket No. SJC-09352). Insurance Assigned risk plan - High-risk drivers Where a judge struck down a decision by the Commissioner of Insurance to approve an assigned risk plan for high-risk drivers unable to obtain private automobile insurance in the voluntary market, the judge’s ruling must be reversed, as the Commission’s plan is not prohibited by G.L.c. 175, §113H. Commerce Insurance Co., et al. v. Commissioner of Insurance, et al. (Lawyers Weekly No. 10-138-06) (23 pages) (Spina, J.) (SJC) Case heard by Gants,J.,on a motion for judgment on the pleadings.Thomas A.Barnico and Elisabeth Ditomassi for Commissioner of Insurance; Nelson G. Apjohn, James A. Ermilio and Daniel P. Olohan for Commerce Insurance Company; Stephen J.D’Amato for Center for Insurance Research; Roberta R. Fitzpatrick for Arbella Mutual Insurance Company; the following submitted briefs for amici curiae: Edward J. Donahue Jr., Luke A. Dillon III, Peter S. Rice, Mark A. Walsh, Elizabeth R. Cerda and Peter T. Robertson for Massachusetts Insurance Federation, Inc., and others; Joshua R. Kratka for Massa-
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