Soave v. Purity Supreme, Inc.

12 Mass. L. Rptr. 553
CourtMassachusetts Superior Court
DecidedNovember 22, 2000
DocketNo. 981173
StatusPublished

This text of 12 Mass. L. Rptr. 553 (Soave v. Purity Supreme, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Soave v. Purity Supreme, Inc., 12 Mass. L. Rptr. 553 (Mass. Ct. App. 2000).

Opinion

Botsford, J.

This case involves a slip and fall injury to the plaintiff which occurred in the defendant’s store premises. The case was tried in May 2000 (liability only), and has been resolved. At issue at this time is the plaintiffs motions for sanctions against the defendant and more particularly its attorneys for conduct in the five months before the case was tried that the plaintiff claims was highly unethical. For the reasons discussed below, I conclude that the defendant’s attorneys are to pay the plaintiffs counsel $2000.00 as a sanction.

[554]*554Background

The plaintiffs fall at the defendant’s store occurred on April 24, 1995. In November of 1996, it appears the plaintiff was seen by Dr. Paul A. Glazer, an orthopedic surgeon. Dr. Glazer wrote a letter to the plaintiffs then attorney in January 1997, in which he described that the plaintiff had recently undergone disc surgery (in December 1996) which was successful, that she would be able to return to full time employment in the future, but that the plaintiff was still recovering. The doctor went on to state:

I feel [the plaintiffs] currently [sic] disability was most likely related to her fall on April 24, 1995, when she fell in the [defendant’s] store. Disc herniation is often exacerbated by acute injury on top of an underlying disc degeneration. I hope this report covers the issues which you have requested.

This action was filed in March of 1998. It appears there were a significant number of discovery disputes between counsel as the case progressed. One of these concerned the defendant’s motion to obtain the criminal record, if any, of the plaintiff. The plaintiff opposed the motion and cross-moved in the alternative to obtain access to the criminal records of the defense witnesses. A judge of this court allowed the defendant’s motion, and the plaintiffs cross-motion. The cross-motion was allowed by order dated December 29, 1999.

At the time of this motion’s allowance, the parties had filed a final pre-trial memorandum or memoranda. In that document (or documents), the plaintiff had listed Dr. Glazer as an expert witness, and the defendant had listed as potential witnesses, among others, all the plaintiffs medical treatment providers, including Dr. Glazer. Since the court ordered that the plaintiff was entitled to access to the criminal records, if any, of the defendant’s witnesses, defense counsel reportedly took it upon themselves to write each of the plaintiffs physicians to request his or her birth date in order to obtain the physician’s criminal record.1 The letter sent to Dr. Glazer stated:

Dear Dr. Glazer:

It is with regret that I inform you that the Middlesex Superior Court has Ordered that the plaintiff, Kathleen Soave, is entitled to your address, date of birth, and social security numberjorpurposes of obtaining your criminal history, (see enclosed.)
The court further Ordered the defendant to obtain this information from you, and transmit it to plaintiffs counsel.[2] Therefore, please send to this office the requested information.
Ms. Soave claims that, as a result of a slip and fall on a “pudding like substance” in the defendant’s store on April 24, 1995, she sustained rib and back injuries which caused her to develop, inter alia, “serious and permanent changes in her back including eburnation . . . endplate sclerois [sic] . . . permanent loss of range of motion of her back and chronic and intractable pain syndrome.” Additionally, the plaintiff claims to have been able to work only from September 1995 to January 1996, and says that she has since been permanently disabled from employment.
You were of course named by the defendant as a possible witness in this case because you either provided medical services to Ms. Soave, employed her, or have other affiliations with her.
It may strike you as sad and ironic that the plaintfff would accept treatment or other benefit from you, only to then seek and obtain a court Order that your privacy be invaded.
We opposed the issuance of such an Order. However, at this time we can do naught but follow it. Hence, this letter.
Very truly yours,
Jeffrey A. De Lisi

(Emphasis supplied.)

According to the De Lisi affidavit, on January 13, 2000, Dr. Glazer telephoned defense counsel. In that conversation, Dr. Glazer is described as having stated' to Mr. DeLisi that Mr. DeLisi could tell the plaintiffs attorney that he would not be an expert for the plaintiff, that the plaintiff “had lied to him regarding drug use, is totally unreliable, and that her injuries could not be causally related to the plaintiffs alleged fall at [the defendant’s store].” (Affidavit of Jeffrey De Lisi, ¶5.) It appears that Dr. Glazer also wrote defense counsel a letter following this telephone conversation, in which he states he does not want to submit any personal information regarding “date of birth and social security," and goes on to. state

I feel that I would be [sic] an expert witness.on behalf of Ms. Soave; rather, I would prefer to be one for the defendant in this case, Purity Supreme, Inc. This is because of Mrs. Soave’s repeated lying to me in her post-operative course regarding her narcotic use. Please feel free to contact me if you have any further questions, and I will divulge our office address information in the above letter. Thank you for your attention to this matter.3

The De Lisi affidavit states that Dr. Glazer’s comments about the plaintiffs medical history were confined to those quoted above. However, on April 4, 2000, Mr. DeLisi wrote to Dr. Glazer the following letter, in which he characterizes his January 13, 2000 conversation with the doctor as having included substantially more comments by the doctor about the plaintiff:

Thank you for your telephone call of January 14, 2000 [sic] wherein you offered to help the defense prove that there is no reasonable connection between Ms. Soave’s claimed incident at Purity Supreme and the injuries which prompted the two [555]*555surgeries you performed. You were helpful in commenting that Ms. Soave’s alleged injuries were common for a person her age, that she had Degenerative Disk Disease, and that she misled both you and other medical providers in her quest to satisfy her vicodan addiction.
A trial date in this case has been set for May 30, 2000 at 9:00 A.M. in the Middlesex Superior Court. I would like to talk to you about testifying as an expert witness for the defendant.
Enclosed please find a copy of a report of an Independent Medical Examination performed by Dr. Thomas Winters. I will call you in the near future to discuss this case further.

On the same date as this letter to Dr. Glazer, April 4, 2000, the defendant filed supplemental expert interrogatory answers, in which it listed Dr. Glazer as an expert witness for the defense. The answers described Dr. Glazer’s expected testimony as follows:

Dr.

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Bluebook (online)
12 Mass. L. Rptr. 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soave-v-purity-supreme-inc-masssuperct-2000.