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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-319
LISA ANTONELLI JONES
vs.
RYNE STEVEN JOHNSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Superior Court jury trial, the plaintiff, Lisa A.
Jones, appeals from judgments that, collectively considered,
dismissed her claims against the defendant dentist, Ryne S.
Johnson, arising out of incidents of alleged sexual harassment
that occurred while she was his patient in 2014. 1 We conclude
that a judge (first motion judge) erred in dismissing Jones's
claims under G. L. c. 93A and for intentional infliction of
emotional distress (IIED). We further conclude that a second
1Three different partial judgments entered, on the same date, based on the partial allowance of Johnson's motion to dismiss, the partial allowance of his motion for summary judgment, and a jury verdict that resolved the last remaining claim. In the absence of a certification under Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), "the better practice is to defer the entry of anything designated a 'judgment' until all claims are determined as to all parties and then to have a single final judgment enter as to all claims and parties." Jones v. Boykan, 74 Mass. App. Ct. 213, 218 n.9 (2009). motion judge erred in ordering summary judgment for Johnson on
Jones's claim of assault and battery, although that judge was
correct in ruling that most of Jones's public accommodation
claim was time-barred and not saved by the continuing violation
doctrine. We therefore vacate portions of the judgments and
remand for further proceedings.
Background. We discuss the key allegations of the first
amended complaint (complaint), reserving certain details for
later discussion. When Jones sought treatment in February 2014
for a front tooth that needed a crown, Johnson made
inappropriate sexually oriented comments to her, both in his
office and in a telephone call to her afterward. These included
responding to her question about her options (by which she meant
treatment options) by suggesting that she "always ha[d] Weld
Square," referring to an area noted for sex workers in New
Bedford, a city near which she lived.
When Jones returned to Johnson's office in April 2014
because a temporary crown had come loose, he told her there was
no charge for the visit but that she could buy him a drink when
he came to New Bedford a few weeks later. Later in April, he
sent her a text message asking to meet; she "felt trapped and
pressured by this behavior as she was part-way through the
dental treatment and had paid [Johnson's] practice a substantial
amount of money." After several text exchanges, she told him
2 that she did not feel comfortable meeting him socially, to which
he replied, "Okay, we can keep this strictly professional."
Jones suffered stress, hair loss, anxiety, and fear about
returning for treatment.
When Jones returned for an appointment in June 2014,
Johnson seemed angry (as Jones had feared) and did not speak to
her. To her surprise in light of what Johnson's office had told
her about the purpose of the visit, he began drilling into and
pushing on the tooth, causing her substantial pain. He then
pulled on the tooth using pliers and a wire and exclaimed, "Oh,
no!" She asked what was wrong and Johnson eventually replied,
"Your tooth broke to the gum line and I can't do the crown now."
She asked him if she had options, to which he replied that she
could work the streets in New Bedford. He also said that she
had two choices: "a post and crown which might not last or an
implant for $8,500." Jones stopped treatment with Johnson.
Jones later commenced this action. The complaint alleged,
among other things, claims for violation of c. 93A, IIED,
assault and battery, and sex discrimination in a place of public
accommodation, see G. L. c. 272, § 98. 2 The c. 93A and IIED
As discussed infra, the public accommodation claim was 2
initially filed with the Massachusetts Commission Against Discrimination under G. L. c. 151B, § 5, and then dismissed and refiled in Superior Court. The complaint asserted other claims, including against Johnson's dental practice, that were later dismissed and are not at issue on appeal.
3 claims were dismissed in 2017 for failure to state a claim.
Later, on Johnson's 2018 summary judgment motion, the assault
and battery claim was dismissed, and the public accommodation
claim was narrowed on timeliness grounds. What remained of that
claim was tried in 2021 to a defense verdict. Judgment entered,
and this appeal followed.
Discussion. We review the sufficiency of the complaint de
novo, taking as true its factual allegations and drawing all
reasonable inferences in Jones's favor. See Curtis v. Herb
Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look
beyond the conclusory allegations in the complaint and focus on
whether the factual allegations plausibly suggest an entitlement
to relief." Id., citing Iannacchino v. Ford Motor Co., 451
Mass. 623, 635-636 (2008). In doing so, we consider, among
other things, exhibits attached to the complaint. See Schaer v.
Brandeis Univ., 432 Mass. 474, 477 (2000).
1. Chapter 93A claim. In the context of medical (or in
this case dental) treatment, alleged negligence alone does not
state a c. 93A claim. See Darviris v. Petros, 442 Mass. 274,
278-280 (2004). Rather, a plaintiff must allege some unfairness
or deception in an "entrepreneurial or business aspect of [the
defendant's dental] practice." Id. at 280. Here, the first
motion judge dismissed Jones's c. 93A claim on the ground that
4 her complaint failed to allege that any of Johnson's conduct was
economically motivated.
Jones's complaint, however, attached and incorporated her
c. 93A demand letter, in which she alleged that Johnson's
conduct had an economic dimension. Specifically, she alleged
that after Johnson broke her tooth, he told her that a crown
probably would not last and suggested that she proceed with an
implant costing $8,500. His office retained the money she had
already paid for the crown. After her final visit, his office
pressured her to return, including by "falsely stating that she
would lose all of her money and that [the] office had
additionally obtained her insurance coverage/payments . . . to
force her to continue treatment (and remain under the financial
leverage of Dr. Johnson . . . ) when it was clear that she was
seeking an alternate provider."
Jones cited these allegations in her opposition to
Johnson's motion to dismiss. We view the allegations in the
light most favorable to Jones and draw all reasonable inferences
from them in her favor. See Curtis, 458 Mass. at 676. In that
light, the allegations were sufficient to state a claim under
c. 93A as interpreted in Darviris, 442 Mass. at 278-281.
Dismissal of that claim was therefore error.
5 2. IIED claim. To state a claim for IIED, a plaintiff
must allege four elements. See Agis v. Howard Johnson Co., 371
Mass. 140, 144 (1976).
"It must be shown (1) that the actor intended to inflict emotional distress or that [they] knew or should have known that emotional distress was the likely result of [their] conduct; (2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency and was utterly intolerable in a civilized community; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe and of a nature that no reasonable [person] could be expected to endure it" (citations and quotations omitted).
Id. at 144-145. Here, the first motion judge dismissed Jones's
IIED claim on the grounds that she failed to allege either that
Johnson's conduct was sufficiently extreme and outrageous or
that Johnson intended to inflict such distress on Johnson.
"The standard for making a claim of intentional infliction
of emotional distress is very high," and there is no doubt that
a "judge may grant a motion to dismiss where the conduct alleged
in the complaint does not rise to [the] level" required by Agis
(quotation omitted). Polay v. McMahon, 468 Mass. 379, 385-386
(2014). Here, however, Jones alleged that Johnson made numerous
inappropriate sexual comments and advances to her when she was a
patient under his care, intentionally broke her tooth as
retaliation for rebuffing his advances, and finally suggested
that, inferentially in spite of, or because of, her damaged
front tooth, she could still become a sex worker on the street
6 unless she paid $8,500 for an implant. Viewing these
allegations and the reasonable inferences therefrom in the light
most favorable to Jones, we cannot reasonably say, as a matter
of law, that the conduct was not extreme and outrageous within
the meaning of Agis, 371 Mass. at 145.
The first motion judge also ruled that the complaint failed
to allege, except in impermissible conclusory fashion, see
Iannacchino, 451 Mass. at 635-636, that Johnson intended to
inflict emotional distress. The judge read the complaint as
alleging only that emotional distress was "the predictable
result of actions (sexually harassing her and intentionally
breaking her tooth) that [Johnson] took because he was trying to
produce different results altogether (persuading [Jones] to take
part in the romantic/sexual relationship and retaliating against
her for not doing so)." What this overlooks is that under Agis
it also suffices that the defendant "knew or should have known
that emotional distress was the likely result of his conduct."
Agis, 371 Mass. at 144-145. The complaint sufficiently alleged
this element. Dismissal of the IIED claim was therefore error.
3. Assault and battery claim. In reviewing whether
summary judgment was proper on the assault and battery claim, we
ask whether, viewing the evidence in the light most favorable to
Jones as the nonmoving party, all material facts were
established and Johnson was entitled to judgment as a matter of
7 law. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117,
120 (1991). Johnson could also obtain summary judgment by
showing that Jones, who would bear the burden of proof at trial,
had no reasonable expectation of proving an essential element of
her case. See Kourouvacilis v. General Motors Corp., 410 Mass.
706, 716 (1991).
Jones claimed that Johnson committed an assault and battery
"by his malicious, intentional and permanently damaging
treatment of [Jones] resulting in breaking off of her tooth."
The second motion judge correctly characterized this claim as
one for battery (rather than assault and battery). See Conley
v. Romeri, 60 Mass. App. Ct. 799, 805 n.6 (2004). The judge
recognized that the tort of battery required, among other
things, that the defendant have caused a harmful or offensive
contact with the person of another. See Waters v. Blackshear,
412 Mass. 589, 590 (1992).
The judge ruled that here, the summary judgment record
contained insufficient evidence that Johnson caused any
"harmful" contact with Jones. In the judge's view, the only
evidence of the contact being harmful was Jones's own deposition
testimony that Johnson had wrapped a wire around her tooth,
"snapped it down until [her] tooth broke," and then, when Jones
asked him what had happened, replied, "your tooth snapped off to
the gumline." Johnson, however, offered an affidavit from an
8 expert periodontist opining -- based among other things on
radiographs (X-rays) taken before and after the event and on a
conversation with Johnson -- that Jones's tooth had not
fractured at all. Rather, the expert opined that composite
resin material, left over from a 2006 root canal procedure, had
become loose and separated from Jones's tooth. In light of this
expert evidence, and without any contrary expert evidence
offered by Jones, the judge ruled that "no finder of fact
reasonably could conclude that Johnson in fact had broken her
tooth."
This ruling was in error. The expert's opinion was based
in part on the explanation Johnson gave him of what happened.
Not only did Johnson never tell Jones this version, but he made
a contemporaneous comment to her that undercuts it. A finder of
fact could credit Jones's deposition testimony that (1) Johnson
told her that her tooth had snapped off, and (2) Johnson never
informed her that "it was the resin plug that actually loosened
and gave way and not the tooth itself." 3 Johnson, as a dentist
3 A finder of fact could also credit Jones' deposition testimony that, at an earlier appointment with Johnson, when her old crown was removed, she could still see a small tooth "like a rabbit tooth" remaining, but that after the "snapping" incident, Johnson gave her a mirror and she looked and saw that she had "no tooth in [her] head." Jones's account of a dental hygienist's surprised reaction to the "snapping" also supports Jones's claim.
9 with twenty-seven years of experience as of the time he treated
Jones, was not lacking in expertise of his own. What he told
Jones (according to her) was in the nature of an excited
utterance, arguably against his own interest, and thus less
likely to be fabricated. The finder of fact would not be
required to believe either (1) what Johnson might have said
later to the expert periodontist that informed the expert's
opinion, or (2) Johnson's deposition testimony that he noticed
and told Jones that the plastic filling (or "core") of her tooth
was "wiggling" and "had a little wobble to it." 4 Not every
question regarding an alleged injury in a medical setting
requires expert testimony.
In short, there remained a genuine issue of fact as to
whether Johnson broke Jones's tooth. Summary judgment for
Johnson on the battery claim was therefore error.
4. Public accommodation claim; timeliness. The second
motion judge ordered summary judgment for Johnson on most of
Jones's public accommodation claim, on the ground that most of
Johnson's alleged acts of harassment occurred, and Jones knew
the situation was unlikely to improve, more than 300 days before
4 The apparently contemporaneous written record of Jones's visit stated that "the core broke off the tooth which left a stump." Although the reference to the core could support Johnson's account, the statement that something "broke off" could be taken to support Jones's account.
10 she filed her claim with the Massachusetts Commission Against
Discrimination (MCAD). See note 2, supra. A claim for sex
discrimination in a place of public accommodation, see G. L.
c. 272, § 98, 5 must be filed with the MCAD "within 300 days after
the alleged act of discrimination." G. L. c. 151B, § 5. Here,
it was undisputed that, of Jones's various interactions with
Johnson, only the June 2014 appointment at which she alleges he
broke her tooth occurred within 300 days before Jones's MCAD
filing. The allegations based on the earlier appointments and
the text messages would be time-barred unless saved by the
continuing violation doctrine.
The parties and the judge proceeded on the basis that the
applicability of that doctrine here was governed by Cuddyer v.
Stop & Shop Supermarket Co., 434 Mass. 521 (2001). See Borne v.
Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 308-
309, 312-313 (2003) (applying Cuddyer to claim of sex
discrimination in public accommodation). As most pertinent
here, Cuddyer provides:
"[A] plaintiff who demonstrates a pattern of sexual harassment that creates a hostile work environment and that includes conduct within the [then applicable 6] statute of
5 There is no dispute that, for purposes of § 98, a dental office such as that operated by Johnson is a place of public accommodation. See G. L. c. 272, § 92A.
6 At the time Cuddyer was decided, the limitations period for filing with the MCAD was set by G. L. c. 151B, § 5, at six months. Cuddyer, 434 Mass. at 522. The statute was amended in
11 limitations, may claim the benefit of the continuing violation doctrine and seek damages for conduct that occurred outside the limitations period, unless the plaintiff knew or reasonably should have known that her work situation was pervasively hostile and unlikely to improve, and, thus, a reasonable person in her position would have filed a complaint with the MCAD before the statute ran on that conduct."
Cuddyer, supra at 539. Whether the doctrine applies may in some
cases present issues of fact, see id., but in others, as Jones's
brief acknowledges, its application may be resolved at summary
judgment as a matter of law. See id. at 539-540; Borne, supra
at 312.
Here, the judge discussed the summary judgment record in
detail and concluded that Jones knew, after her second
appointment and a late April 2014 text message exchange with
Johnson, that: (1) she was being sexually harassed, (2) she was
suffering emotional and physical symptoms as a result, and
(3) the situation was "unlikely to improve." Cuddyer, 434 Mass.
at 539. The judge determined as a matter of law that "a
reasonable person in [Jones's] position would have filed a
complaint with the MCAD before the statute ran on that conduct,"
id., and so she could not avail herself of the continuing
violation doctrine.
2002 to enlarge the filing period to 300 days. See G. L. c. 151B, § 5, as amended by St. 2002, c. 223, § 1.
12 On appeal, Jones argues that the judge ignored that, in
response to her text message expressing discomfort about meeting
Johnson socially, he assured her, "we'll keep it strictly
professional." Jones's theory, as we understand it, is that she
was reasonably entitled to rely on this statement as a basis to
think that matters might improve and that there was no need to
file a complaint. Jones points to one of the policy concerns
underlying the Cuddyer rule: that the complainant should not
"be forced prematurely to choose litigation as a remedy."
Cuddyer, 434 Mass. at 538.
The problem for Jones is that her deposition testimony
shows beyond reasonable dispute that she did not rely on
Johnson's assurance. Jones testified that even after his text
message, she delayed in making another appointment, and that,
after some time, Johnson's office called to ask if she was
returning to have her treatment completed. Jones then made an
appointment to do so but, on the morning of the appointment, due
to her worry about further sexual harassment, she "had a major
panic attack" and "cancelled last minute." This prompted
Johnson's office to call her back to give her a "sermon" to the
effect that Johnson's time was "very valuable" and he was "very
upset" about the last-minute cancellation. She agreed that she
"felt sexually harassed after the text messages in April," and
it caused her additional hair loss, anxiety, and fear. "[It]
13 just kept getting worse and worse." Based on this record, the
judge correctly ruled that Jones knew the situation was unlikely
to improve and, therefore, the continuing violation doctrine did
not apply.
Jones also suggests that, assuming her public accommodation
claim required evidence that the sexual harassment affected the
quality of the dental treatment she received, then her entire
claim did not accrue until the date Johnson assertedly broke her
tooth, meaning her entire claim was timely filed. Although
Johnson appeared to argue in his summary judgment memorandum
that Jones was required to show an adverse effect on her dental
treatment, nothing in the judge's decision suggests that he
accepted this argument. Jones herself is skeptical of the
argument, Johnson disclaims it in his brief, and we reject it. 7
Nor do we agree with Jones's claim that the trial judge
accepted the argument. Neither the jury instructions nor the
special questions on the verdict slip required the jury, in
order to return a verdict for Jones, to find that any harassment
or discrimination also affected the quality of the dental
7 Because the public accommodation law applies to a wide range of establishments (such as hotels, restaurants, and gas stations) going well beyond dental or medical facilities, see G. L. c. 272, § 92A, the law's prohibition of discrimination in the "treatment" of a person in a place of public accommodation, G. L. c. 272, § 98, clearly encompasses more than dental or medical treatment.
14 treatment Jones received. Both the instructions and the verdict
slip focused instead on whether any discrimination denied Jones
"the full and equal accommodations, advantages, facilities and
privileges of" the dental office as a place of public
accommodation. G. L. c. 272, § 98. The advantages and
privileges of a visit to a dental office could plainly encompass
freedom from sexual harassment, even if the dental treatment
itself were exemplary.
In short, even before Johnson allegedly broke Jones's
tooth, his allegedly improper advances and the resulting harm to
Jones caused the bulk of her claims of discrimination in a
public accommodation to accrue more than 300 days before Jones's
MCAD filing. Summary judgment on those portions of her claims
was therefore proper. 8
Conclusion. So much of the judgments as dismissed the
claims of a c. 93A violation, intentional infliction of
emotional distress, and battery are vacated. In all other
8 Jones argues in passing that she is entitled to a new trial on her public accommodation claim because the second motion judge's ruling on the battery claim barred her from offering evidence at trial of retaliation (in the form of intentional damage to her tooth) and resulting damages. This claim, made without any citation to the record or supporting legal authority, does not rise to the level of appellate argument under Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019), and we decline to consider it. See Maroney v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 678, 683 n.8 (2020) (claims not adequately argued on appeal are waived).
15 respects the judgments are affirmed. The case is remanded for
further proceedings consistent with this memorandum and order. 9
So ordered.
By the Court (Milkey, Sacks & Smyth, JJ. 10),
Assistant Clerk
Entered: April 22, 2024.
9 Jones's request for appellate attorney's fees and costs under c. 93A is denied as premature. Cf. Tavares v. Trial Court, 103 Mass. App. Ct. 780, 786 n.9 (2024) (request for appellate attorney's fees under G. L. c. 151B denied as premature notwithstanding favorable appellate ruling because "merits of the[] claims remain to be determined" in trial court).
10 The panelists are listed in order of seniority.