ST A TE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, SS. LOCATION: PORTLAND Docket No. BCD-CV-15-1 6 /
HOLLY WILSON, individually and ) as next friend of CASSIDY WILSON, ) and KERRI WILSON, as personal ) representative of the estate of ) RYAN DALE WILSON, ) ) Plaintiffs, ) ) v. ) ORDER ON DEFENDANTS' MOTION ) FOR SUMMARY JUDGMENT ) DANIEL G. LILLEY, P.A. and ) DANIEL G. LILLEY, ESQ., ) ) Defendants. )
Defendants Daniel G. Lilley, P.A. and Daniel G. Lilley, Esq. (the "Lilley
Defendants") have moved for summary judgment on all claims brought against
them by Plaintiffs Holly Wilson, individually and as next friend of Cassidy Wilson,
and Kerri Wilson, as personal representative of the estate of Ryan Wilson. For
the following reasons, the Lilley Defendants motion is granted.
BACKGROUND Holly Wilson and Ryan Wilson 1 are the parents of Cassidy Wilson. (Pis.
Add'I S.M.F. ,I 1; Defs. Reply S.M.F. ,I 1.) On August 31, 2000, Holly and Ryan
went to Mercy Hospital for Holly to give birth to Cassidy. (Id.) Maile Roper,
1 Ryan Wilson died during the pendency of this action on February 4, 2016. (Pis. Mot. Amend Comp I. ,r 3.) Kerri Wilson was appointed as personal representative of his estate and has been substituted as a party in this action. (Id. ,r 4; Am. Compl. ,r,r 5-6.) 0.0. was Holly's physician during her pregnancy. (Id. ,r 3.) Cassidy's delivery
was difficult. (Defs. Supp'g S.M.F. ,r 3; Pis. Opp. S.M.F. ,r 3.) Holly suffered an
arrest disorder during labor and delivery. (Pis. Add'I S.M.F. ,r 7; Defs. Reply
S.M.F. ,r 7.) Cassidy was delivered by emergency cesarean section on
September 1, 2000. (Id. ,I 1 5.) Cassidy required immediate resuscitation and
had to be transferred to a neonatal intensive care unit, where she spent the
next twenty-six days following her birth. (Id. ,r,r 17, 22.) In October 2001,
Cassidy was diagnosed with cerebral palsy secondary to hypoxic ischemic
encephalopathy. (Id. ,r 24.) Cassidy is physically and cognitively disabled. (Id.
,r,r 25-26.) Holly Wilson and Ryan Wilson entered into a contingent fee agreement
with the Lilley Defendants on December 17, 2001. (Id. ,r,r 33-34.) The Lilley
Defendants filed a notice of claim against Mercy Hospital, Mercy Primary Care
Centers, and Dr. Roper (the "Medical Defendants") on May 20, 2005. 2 (Id. ,r
3 7.) The notice of claim included claims on behalf of Cassidy as well as
individual claims on behalf of Holly and Ryan. (Id. ,r,r 3 7-38.) Pursuant to the
Maine Health Security Act, the Wilsons' claims were presented to a prelitigation
screening panel in 2008. (Id. ,r 60, Defs. Ex. 30.) On December 1 5, 2008, the
2 Hereafter, the underlying action against the Medical Defendants is referred to as the "Wilson v. Mercy'' case or trial.
2 panel entered unanimous decrees in favor of the Medical Defendants on both
negligence and causation. (Id.)
The Lilley Defendants filed a complaint against the Medical Defendants on
January 2, 2009. (Id. ,r 41; Pis. Ex. 23.) The complaint included claims on
behalf of Cassidy, Holly, and Ryan. (Id. ,r,r 41 -42; Pis. Ex. 23.) On November 4,
2009, the Medical Defendants filed a motion to dismiss Holly's and Ryan's
individual claims as barred by the statute of limitations. (Id. ,r 49.) The Wilson
v. Mercy trial began on December 8, 2009. (Id. ,r 105.) On the first day of
trial, the court dismissed Holly's and Ryan's individual claims as time-barred. (Id.
,r 52.) On December 21, 2009, the jury returned a verdict on the remaining
claims in favor of the Medical Defendants. (Id. ,r 106.)
Holly Wilson and Ryan Wilson filed this action against the Lilley
Defendants for legal malpractice and other claims with the Superior Court on
December 9, 2014. This action was subsequently transferred to Business and
Consumer Court. The Lilley Defendants filed their motion for summary
Judgment on August 22, 2016. Following an extension of time, Plaintiff filed
their opposition to summary judgment on September 26, 201 6. Defendants
filed a reply on October 14, 2016. On November 7, 2016, the court granted
Plaintiffs request to file a supplemental affidavit to support its additional
statements of material fact.
3 STANDARD OF REV IEW
A. Summ ary Judg ment Standard
Summary judgment is appropriate if, based on the parties' statements-of
material fact and the cited record, there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
Dyer v. Dep't of Transp., 2008 ME 106, ,r 14, 9 51 A.2d 821. A fact is material
if it can affect the outcome of the case. Dyer, 2008 ME 106, ,I 14, 951 A.2d
8 21 . A genuine issue of material fact exists if the fact finder must choose
between competing versions of the truth. Id. When deciding a motion for
summary judgment, the court reviews the evidence in the light most favorable
to the non-moving party. Id.
If the moving party's motion for summary judgment is properly
supported, the burden shifts to the non-moving party to respond with specific
facts establishing a prima facie case for each element of the claim challenged by
the moving party. M.R. Civ. P. 56(e); Chartier v. Farm Family Life Ins. Co., 201 5
ME 29, ,r 6, 113 A.3d 234. If the non-moving party fails to present sufficient
evidence of the challenged elements, then the moving is entitled to a summary
judgment. Watt v. UniFirst Corp., 2009 ME 47, ,I 21, 969 A.2d 897.
4 8. .!,,&gal Malpractice
Generally, to assert a claim for legal malpractice, the plaintiff must prove
that the defendant attorney breached a duty to conform to a certain standard
of conduct owed to the plaintiff, and that the defendant's breach of duty
proximately caused the plaintiff's injury or loss. Niehoff v. Shankman & Assocs.
Legal Ctr., P.A., 2000 ME 214, ,r 7, 763 A.2d 121. The plaintiff must also
prove that, but for the defendant's breach of duty, the plaintiff would have
achieved a more favorable result. Id. ,r 9; Garland v. Roy, 2009 ME 86, ,r,r 1 9
20, 976 A.2d 940.
Although breach is a question fact for the jury, the existence of a duty is
a qu~stion of law for the court. Estate of Smith v. Cumberland Cnty., 201 3 ME
13, ,r 17, 60 A.3d 759. "Attorneys are under a legal obligation to discharge
their duties and execute the business entrusted to them with a reasonable
degree of care, skill, and dispatch, and if a client is injured by the fault or
negligence of the attorney, the attorney is liable." Garland, 2009 ME 86, ,r 19,
976 A.Zd 940. Expert testimony is usually required to establish the appropriate
standard of care and whether the defendant attorney breached that standard of
care, unless the breach or lack thereof is "so obvious" that it can b~ determined
by the court as a matter of law or is within the ordinary knowledge of a
layperson. Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ,r 26, 8 A.3d 677.
5 In legal malpractice claims, the same rules of causation apply whether the
cause of action sounds in contract, negligence, or breach of fiduciary duty.
Steeves v. Bernstein, Shur, Sawyer & Nelson, P.C., 1998 ME 210, ,r 10 n.8, 718
A.2d 1 86. Proximate cause exists where the evidence, and any reasonable
inferences drawn from the evidence, demonstrate that the defendant attorney's
negligence played a substantial part in bringing about or actually caused the
plaintiff's injury or damages and that the injury or damage was either a direct
result or a reasonably foreseeable consequence of the attorney's negligence.
Niehoff, 2000 ME 214, ,r 8, 763 A.2d 1 21. "It is appropriate for a trial court to
keep highly speculative causation issues, from the jury in a legal malpractice
case." Steeves, 1998 ME 210, ,r 13, 718 A.2d 186. The mere possibility that
the defendant attorney's negligence might have proximately caused the
plaintiff's loss is not enough. Id. ,r 12. If the plaintiff's assertions of causation
rest on pure speculation or conjecture, or where the probabilities are evenly
balanced, the defendant is entitled to judgment as a matter of law. Niehoff,
2000 ME 214, ,r 8, 763 A.2d 121.
In order to demonstrate that, but for the defendant attorney's breach of
duty, they would have achieved a more favorable result, the plaintiff must
provide expert testimony that the plaintiff would have prevailed on the
6 underlying claims if not for the defendant's negligence. Corey v. Norman,
Hanson & DeTroy, 1999 ME 196, ,r,r 13-14, 742 A.2d 933.
ANALYSIS
Plaintiffs' amended complaint asserts claims for legal malpractice based
on both negligence and breach of fiduciary duty. Plaintiffs assert the Lilley
Defendants committed legal malpractice and breached their fiduciary duty in
representing Cassidy Wilson by ( 1) failing to call live experts at the panel
hearing, and (2) failing to call Cassidy's treating physician at trial. (Pis. Opp'n to
Defs. Mot. Summ. J. 9, 18). Plaintiffs assert the Lilley Defendants committed
legal malpractice and breached their fiduciary duty in representing Holly Wilson
and Ryan Wilson by failing to file notice of Holly's and Ryan's individual claims
against the Medical Defendants within the three-year statute of limitations. (Id.
at 21-22.) Plaintiffs also assert that Lilley Defendants engaged in fraud and
fraudulent concealment by knowingly failing to disclose to Holly Wilson and Ryan
Wilson that their individual claims were time-barred. (Id. at 6.)
A. Cassidy Wilson's Legal Malpractice Claims for Failure to Call Live Experts at the Panel Hearing
The Maine Health Security Act mandates that all actions for professional
negligence against healthcare providers or practitioners must be submitted to a
prelitigation screening panel. 24 M.R.S. 2903( 1); Saunders v. Tisher, 2006 ME
94, ,r 13, 902 A.2d 830. The panel, composed of a chairperson, an attorney,
7 and a medical practitioner, conducts a hearing during which the each party has
an opportunity to present evidence and to cross-examine opposing witnesses.
24 M.R.S. § 2854( 1). At the conclusion of the hearing, the panel determines
( 1) whether the healthcare provider or practitioner's conduct deviated from the
applicable standard of care, and (2) whether the healthcare provider or
practitioner's conduct proximately caused the plaintiff's injuries. Id. § 2855( 1).
If the panel finds unanimously against the plaintiff regarding negligence or
causation, the panel's decrees are admissible to the jury in any subsequent
action for medical malpractice. Id. § 2857( 1)(C). If the panel is divided on
either question, its decrees are inadmissible at a subsequent trial. Id. §
2857(1) .
The Lilley Defendants did not call any live experts at the panel hearing in
the Wilson v. Mercy case.. (Pis. Add'I S.M.F. ~ 57; Defs. Reply S.M.F. ~ 57.)
Following the hearing, the panel entered unanimous decrees in favor of the
Medical Defendants on both negligence and causation. (Id. ~ 60.) The
unanimous decrees were admitted into evidence at trial and were discussed by
the Medical Defendants' counsel, Christopher Nyhan, Esq., during his opening
and closing st_atements. (Id. ~,I 61-63, 65.) The jury ultimately found for the
Medical Defendants. (Id. ,I 106.)
8 The Lilley Defendants assert that their decision to not bring live experts
to the panel hearing was not a breach of the standard of care because
depositions are admissible at the panel hearing and, under Maine law,
depositions are to be given the same weight as live testimony. (Defs. Mot.
Summ. J. 5-6.) Plaintiffs assert there is, at least, a genuine issue of material
fact whether the Lilley Defendants decision was a breach of the standard of
care. (Pis. Opp'n to Defs. Mot. Summ. J. 9-1 0.) Plaintiffs' legal expert, Gerald
F. Petruccelli, Esq., testified that the Lil~ey Defendants' decision to not call live
experts at the panel hearing was "beneath the standard of care" because live,
in-person testimony is more persuasive evidence than a deposition. (Pis. Add'I
S.M.F. ,r,(78-79.) Plaintiffs also cite testimony from the Medical Defendants'
counsel, Attorney Nyhan, who stated that it is "vital" to call expert witnesses at
panel hearings, that live expert testimony was particular important in the Wilson
v. Mercy case because of its complexity, and that the Lilley Defendants'
decision was "per se, a deviation from the standard of care." 3 (Id. ,r,r 75, 77.)
3 The Lilley Defendants object to Plaintiffs' offering opinion testimony from Attorney Nyhan because Attorney Nyhan has not been designated as an expert witness in this case. (Defs. Reply to Pis. Opp'n to Defs. Mot. Summ. J. 2; Defs. Reply $.M.F. ,r,r 7 5-77, 81-83, 92-94, 98, 100-04.) The Lilley Defendants have also filed separate a motion in /imine to exclude Attorney Nyhan's opinion testimony from consideration on summary judgment and at trial. (Defs. Reply to Pis. Opp'n to Defs. Mot. Summ. J. 2; Defs. Mot. in Limine 1-5.) However, the court need not decide this issue. As discussed in detail infra, even considering Attorney Nyhan's opinion testimony, Plaintiffs have not put forth sufficient prima facie evidence to survive summary judgment.
9 Although there may be a genuine issue of material fact whether the Lilley
Defendants breached the standard of care, Plaintiffs have failed to put forth
sufficient prima facie evidence that the Lilley Defendants' decision to not call
live experts proximately caused injury to Cassidy Wilson and that, but for Lilley
Defendants' decision, Cassidy Wilson would have obtained a more favorable
result. Plaintiffs' theory of causation is twofold. Plaintiffs assert that the Lilley
Defendants' decision not to call live experts at the panel hearing caused the
panel to enter unanimous decrees in favor of the Medical Defendants, and that
the unanimous decrees caused harm to the Cassidy Wilson. (Pis. Opp'n to Defs.
Mot. Summ. J. 15-16.)
First, Plaintiffs cite Attorney Nyhan's testimony that the Lilley
Defendants' decision to not call live experts was "vital" at the panel hearing.
(Pis. Add'I S.M.F. ,I 76.) Plaintiffs' legal expert, Attorney Petruccelli, also
asserts that, if the Lilley Defendants had presented live expert testimony, it is
more likely than not that one of the two "law-trained" panelists would have
found for Plaintiffs, dividing the panel and rendering the panel's decrees
inadmissible at trial. (Id. ,I 80.)
Second, Plaintiffs assert that unanimous panel decrees "have a substantial
- and in some cases, determinative - impact on the clients' ability to settle their
case" and that, without a unanimous panel decree, .the Medical Defendants
10 would have been deprived of evidence that Attorney Nyhan considered "key,
vital, and indispensable" to the jury deliberations in Wilson v. Mercy. (Pis. Opp'n
to Defs. Mot. Summ. J. 16-17; Pis. Add'I S.M.F. ~~ 81, 83.)
Foremost, Attorney Nyhan's testimony regarding the Lilley Defendants
decision not to call live experts at the panel hearing is not evidence of
causation. Attorney Nyhan offered no evidence or opinion whether the Lilley
Defendants' decision played a substantial part in or directly caused the
unanimous panel decrees in favor of the Medical Defendants. Attorney Nyhan
also offered no evidence or opinion that, but for the Lilley Defendants' decision,
Cassidy Wilson would have achieved a more favorable result. According to the
testimony cited by Plaintiffs, Attorney Nyhan simply testified that the Lilley
Defendants' decision not to call live experts was "vital." (Pis. Add'I S.M.F. ~
7 6.) While this evidence may suggest that the Lilley Defendants' decision was a
breach of the standard of care, it is not evidence of causation.
Plaintiffs' only evidence of causation is the opinion of their legal expert,
Attorney Petruccelli. As previously discussed, it is the trial court's duty to keep
highly speculative causation issues from the jury in legal malpractice cases.
Steeves, 1998 ME 210, ~ 13, 718 A.2d 186. The mere possibility that a
defendant attorney's negligence might have caused the plaintiff's loss is not
enough. Id. ~ 12. If the plaintiff's theory of causation rests on speculation or
11 conjecture, the defendant is entitled to judgment as a matter of law. Niehoff,
2000 ME 214, ~ 8, 763 A.Zd 121.
Attorney Petruccelli has offered no foundation or explanation for his
opinion that, if the Lilley Defendants had presented live expert testimony at the
panel hearing, then one of the two "law-trained" panel members would have
found for Plaintiffs. When questioned about the foundation for his opinion,
Attorney Petruccelli testified he never spoke to the panelists in the Wilson v.
Mercy case; that he has never served as a panelist; that he could not recall ever
having a conversation with a panelist about a panel matter; and that he could
only remember a couple of instances in the distant past when a panelist had
expressed his unsolicited views after a panel hearing about what evidence did or
did not impress him. (Defs. Reply S.M.F. ~ 80; Petruccelli Dep. 93:8-23.)
Attorney Petruccelli also testified that, although the Lilley Defendants' decision
was beneath the standard of care, "Whether or not it would have made a
difference, you can argue up and down that nobody can be sure what would
happen. It just seems to me, as the old saying goes, that the race doesn't
always go to the swift or the battle the strong but that's the way you bet."
(Defs. Reply S.M.F. ~ 80; Petruccelli Dep. 94: 1 5-19.)
Attorney Petruccelli's testimony demonstrates that his opinion regarding
the possible affect that live expert witnesses may have had on the panel is
12 without foundation and based on speculation. Without proper foundation, a jury
would be unable to assess or weigh Attorney Petruccelli's opinion without
resorting to speculation of its own. See Allen v. McCann, 201 5 ME 84, ~,r 9-11,
1 20 A.3d 90 (stating that an attorney's assertion of opinion without further
explanation or detail does not provide a jury with sufficient foundation upon
which it can assess the evidence without resorting to speculation). Therefore,
Attorney Petruccelli's testimony is insufficient evidence that the Lilley
Defendants' decision to not call live experts caused the unanimous panel
decrees in favor of the Medical Defendants.
Because Plaintiffs have failed to put forth sufficient evidence to support
the first part of their theory of causation, Plaintiffs' theory' of causation fails in
its entirety. Therefore, the court need not reach the second part of Plaintiffs'
theory of causation that the unanimous decrees caused injury to Cassidy
Wilson. Because Plaintiffs have failed to put forth sufficient evidence of
causation, the Lilley Defendants are entitled to summary judgment on Plaintiffs'
claim that the Lilley Defendants committed legal malpractice by failing to
present live witnesses at the panel hearing.
B. Cassidy Wilson's Legal Malpractice Claims for Failure Call her Treating Physician at Trial
Stephen Rioux, M.D. has been Cassidy Wilson's treating pediatric
neurologist since September 2001. (Pis. Opp'n to Defs. Mot. Summ. J. 18; Pis.
13 Add'I S.M.F. ~ ·23; Defs. Reply S.M.F. ~ 23.) In October 2001, Dr. Rioux
diagnosed Cassidy with cerebral palsy secondary to hypoxic ischemic
encepalophathy. (Pis. Add'I S.M.F. ~ 24; Defs. Reply S.M.F. ~ 24.) Prior to the
Wilson v. Mercy trial, the Medical Defendants filed a motion in limine to preclude
Dr. Rioux from testifying regarding the cause of Cassidy Wilson's injuries
because the Lilley Defendants had designated Mark Hiatt, M.D., a neonatologist,
as their causation expert, and the Lilley Defendants had not properly designated
Dr. Rioux as an expert. (Id. ,I 85.) The court ruled that Dr. Rioux's proposed
testimony regarding causation would be duplicative of Dr. Hiatt's testimony and
was precluded under the one-expert-per-issue rule. (Id. ,I 87.) Accordingly, the
Lilley Defendants did not call Dr. Rioux as a witness during the Wilson v. Mercy
trial and relied on Dr. Hiatt's testimony regarding causation. (Id. ,I 88.)
Plaintiffs assert the Lilley Defendants' failure to call Dr. Rioux as a witness
was a breach of the standard of care in two ways: ( 1) the Lilley Defendants
breached the standard of care by failing to understand the importance of Dr.
Rioux's testimony; and (2) the Lilley Defendants breached the standard of care
by failing to explain to the court that Maine case law permitted both Dr. Hiatt
and Dr. Rioux to testify regarding causation. (Pis. Opp'n to Defs. Mot. Summ. J.
18.)
14 Regarding their first assertion, Plaintiffs argue that Dr. Rioux's testimony
"would have been singularly powerful to jury" because, according Attorney
Nyhan, Dr. Rioux was "basically it" for pediatric neurologists in Maine and that
"it was essentially bad news" for insurers and defense attorneys if Dr. Rioux
testified in a case. (Pis. Opp'n to Defs. Mot. Summ. J. 19; Pis. Add'! S.M.F. ,i,i
93-94.) Plaintiffs' legal expert, Attorney Petruccelli, also testified that, in his
opinion, if only one witness was permitted to testify regarding causation, it
should have been Dr. Rioux. (Pis. Add'I S.M.F. ,i 99.)
Regarding their second assertion, Plaintiffs argue the Lilley Defendants'
failed to provide the court in Wilson v. Mercy with the leading case on the one
expert-per-issue rule, Gierie v. Mercy Hospital, 2009 ME 45, 969 A.2d 944.
(Pis. Opp'n to Defs. Mot. Summ. J. 20.) Plaintiffs assert the Lilley Defendants
should have argued to the court that Dr. Rioux's testimony was admissible
under Gierie and should have framed Dr. Rioux's testimony so as to ensure the
court would permit testimony from both experts. (Id.) In support their
argument, Plaintiffs cite Attorney Nyhan's testimony that, under Gierie, if
experts "are going to be offered on different facets or aspects on either liability
or causation, they're not necessarily duplicative and they need not be excused."
(Pis. Add'I S.M.F. ,i 104.) Plaintiffs' legal expert, Attorney Petruccelli, also
15 opined that, if properly managed by the Lilley Defendants, both Dr. Rioux and
Dr. Hiatt should have been able to testify at trial. (Id. ,r 99.)
Although there may be genuine issues of material fact whether the Lilley
Defendants breached the standard of care, Plaintiffs have failed to put forth
prima facie evidence that the Lilley Defendants' failure to call Dr. Rioux as a
witness proximately caused injury to Cassidy Wilson or that, but for Lilley
Defendants' failure, Cassidy Wilson would have obtained a more favorable result.
Plaintiffs cite only to Attorney Nyhan's deposition testimony as evidence of
causation. (Pis. Opp'n to Defs. Mot. Summ. J. 20-21 .) According to Attorney
Nyhan, the Lilley Defendants' decision not to call Dr. Rioux as a witness "made
the plaintiffs' job of persuading the factfinders, the jury in this case, of the
correctness or validity of their position much harder." (Pis. Add'! S.M.F. ,r 101.)
Attorney Nyhan also disagreed with the proposition that "the Wilson case was a
tough case for a plaintiff" because the Medical Defendants did not call their own
causation expert and because Cassidy's treating physician, Dr. Rioux, could have
testified as to causation. (Id. ,r 102.) Plaintiffs cite no testimony from their
legal expert, Attorney Pettucelli, regarding causation on this issue.
Attorney Nyhan's testimony is not prima facie evidence of causation.
Attorney Nyhan's testimony demonstrates only that the Lilley Defendants'
failure to call Dr. Rioux may have made their case more difficult. Attorney
16 Nyhan offered no evidence or opinion whether the Lilley Defendants' failure to
call Dr. Rioux actually played a substantial part in or directly caused the jury to
find for the Medical Defendants. Attorney Nyhan also offered no evidence or
opinion that, but for the Lilley Defendants' decision, Cassidy Wilson would have
achieved a more favorable result at trial.
Because Plaintiffs have not put forth any evidence demonstrating that the
Lilley Defendants decision not to call Dr. Rioux caused the jury to find for the
Medical Defendants, the Lilley Defendants are entitled to summary judgment on
Plaintiffs' claim that the Lilley Defendants committed legal malpractice by failing
to call Dr. Rioux as a witness at trial.
C. Holly Wilson's and Ryan Wilson's Individual Claims for Legal Malpractice
Plaintiffs assert that the Lilley Defendants breached the duty of care
owed to Holly Wilson and Ryan Wilson by failing to file notice of her individual
claims against the Medical Defendants within the three-year statute of
limitations. (Pis. Opp'n to Defs. Mot. Summ. J. ,r,r 21-22.) The Lilley
Defendants filed a notice of claim against the Medical Defendants, which
included individual claims on behalf of Holly and Ryan, on May 20, 2005. (Pis.
Add'I S.M.F. ,r,r 37-38; Defs. Reply S.M.F. ,r,r 37-38.) The Lilley Defendants
filed a complaint including individual claims on behalf of Holly and Ryan on
January 2, 2009. (Id. ,r 41; Pis. Ex. 23.) The Medical Defendants moved to
17 dismiss Holly's and Ryan's individual claims as barred by the statute of
limitations. (Id. ,r 49.) On the first day of the Wilson v. Mercy trial, the court
dismissed Holly's and Ryan's individual claims as time-barred. (Id. ,r 52.)
Failure to commence a suit on behalf of a client prior to the expiration of
the applicable statute of limitations is commonly a breach of the standard of
care. Simmons, Zillman, & Gregory, Maine Tort Law, § 9.25 at 9-62 (2004 ed.).
The Lilley Defendants assert that Plaintiffs cannot establish that any breach of
the standard of care by the Lilley Defendants proximately caused injury to Holly
Wilson or Ryan Wilson because any possible individual claims against the Medical
Defendants would have failed as a matter of law. (Defs. Mot. Summ. J. 13.)
Plaintiffs assert that Holly Wilson had viable malpractice claims against the
Medical Defendants for both physical injuries and her emotional distress. (Pis.
Opp'n to Defs. Mot. Summ. J. 22-26.) Plaintiffs also assert that Ryan Wilson
had a viable claim for negligent infliction of emotional distress based on
bystander liability. (Id. at 29-33.)
1. Whether Holly Wilson had a viable claim for her physical injuries
The court first addresses whether Holly Wilson had a viable medical
malpractice claim for physical injuries against the Medical Defendants because, if
she had a viable claim, then any claim for negligent infliction of emotional
distress is subsumed by the separate tort. See Curtis v. Porter, 2001 ME 1 58,
18 ~ 19, 784 A.2d 1 8. In order to establish a viable medical malpractice claim for
physical injuries, a plaintiff must produce prim a facie evidence of ( 1) the
appropriate standard of medical care, (2) that the defendant breached the
standard of care, and (3) that defendant's breach was the proximate cause of
the plaintiff's injury. Ouellette v. Mehalic, 534 A.2d 1331, 1332 (Me. 1988).
Ordinarily, the plaintiff must prove these elements through expert medical
testimony. Cox v. Dela Cruz, 406 A.2d 620, 622 (Me. 1979). The only
physical injuries resulting from the Medical Defendants' conduct identified by
Holly Wilson were a vertical, rather than horizontal scar from the emergency
cesarean section and a post-delivery incisional infection. 4 (Defs. Supp'g S.M.F. ~
25.)
However, Plaintiffs' own medical expert conceded that Holly Wilson's
physical injuries were not the result of a breach of the standard of care owed to
4 The Lilley Defendants assert that Plaintiffs' expert witness designation of Dr. Carpenter also identified Holly's longer period of contractions as her primary physical injury. (Defs. Supp'g S.M.F. ,r 26.) In response, Plaintiffs assert Dr. Carpenter will also opine that Holly experienced a prolonged labor as resulting from the Medical Defendants' conduct. (Pis. Opp. S.M.F. ,I 26.) Both parties have failed to provide proper evidentiary support for these assertions. Rule 5 6 provides that all statements of material fact must be supported by citation to record evidence. M.R. Civ. P. 56(h)(4). The record evidence cited must be "of a quality that could be admissible at trial." Levine v. R.B.K. Caly Corp., 2001 ME 77, ,I 6, 770 A.Zd 653. The court may disregard any assertions of fact not properly supported. M.R. Civ. P. 56(h)(4). Both parties cite only to Plaintiffs' expert witness designation of Dr. Carpenter to support their assertions. (Defs. Supp'g S.M.F. ,r 26; Pis. Opp. S.M.F. ,I 26.) An expert witness designation is not admissible evidence. Therefore, the court may disregard these assertions.
19 Holly by the Medical Defendants. At his deposition in this case, Dr. Carpenter
testified that, assuming all of the events surrounding Cassidy's birth occurred as
reflected in the medical records, but Cassidy was born a healthy child, it was not
a breach of the standard of care for Holly Wilson to have a vertical scar from
the emergency caesarean section or a post-operative infection. (Defs. Supp'g
S.M.F. ,r,r 34-35; Pis. Opp. S.M.F. ,r,r 34-35.) Because Holly's physical injuries
were not the result of a breach of the duty of care owed to her, Holly Wilson
had no viable claim against the Medical Defendants for her physical injuries.
2. Whether Holly Wilson had a viable claim for negligent infliction of emotional distress
Plaintiffs assert that, even absent a claim for her physical injuries, Holly
Wilson still had a viable claim against the Medical Defendants for negligent
infliction of emotional distress. (Pis. Opp'n to Defs. Mot. Summ. J. 23-25.)
Absent a physical injury or the existence of another tort, there is generally no
duty to avoid causing emotional harm to others. Curtis, 2001 ME 1 58, ,r,r 18
19, 784 A.2d 18. Our Law Court has recognized a duty to act reasonably to
avoid causing emotional harm in two limited circumstances: ( 1 ) if the
circumstances permit the plaintiff to recover under a theory of bystander
liability, or (2) where a special relationship exists between the defendant and
the emotionally harmed plaintiff. Id. ,r 19. A doctor-patient relationship is a
special relationship. See Bolton v. Caine, 584 A.2d 615, 618 (Me. 1990); Rowe
20 v. Bennett, 514 A.2d 802, 807 (Me. 1986). A claim for negligent infliction of
emotional distress requires evidence of "severe" emotional distress. Curtis,
2001 ME 158, ,r 20, 784 A.2d 18.
The parties dispute whether as a matter of law Holly Wilson's claim for
negligent infliction of emotional distress was a direct claim for emotional
distress damages against the Medical Defendants or whether she was limited to
bystander liability. The Lilley Defendants argue that a mother's claim for
negligent infliction of emotional distress resulting from negligence during the
birth of her child is solely a claim for bystander liability. (Defs. Reply to Pis.
Opp'n to Defs. Mot. Summ. J. 10-1 2.) Plaintiffs, on the other hand, assert that
the duty of care owed to a mother and an unborn child during labor and delivery
cannot be separated and that a mother may bring a direct claim for negligent
infliction of emotional distress for negligence that occurred during birth. (Pis.
Opp'n to Defs. Mot. Summ. J. 24-26.) Alternatively, Plaintiffs assert that Holly
Wilson had viable claim based bystander liability. (Id. at 22 n.8.)
The court need not decide whether a mother may assert a direct claim for
negligent infliction of emotional distress resulting from negligence during the
birth of her child or whether a mother is limited to bystander liability. Our Law
Court has stated that a claim for negligent infliction of emotional distress
against a medical professional is simply a type of medical malpractice claim.
21 Champagne v. Mid-Me. Med. Ctr., 1998 ME 87, ,r 3 n.3, 711 A.2d 842. Thus,
like other medical malpractice claims, a plaintiff must prove their claim for
negligent infliction of emotional distress through expert medical testimony.
Cox, 406 A.2d at 622.
Assuming Holly Wilson may assert a direct claim against the Medical
Defendants for emotional distress resulting from negligence during the birth of
her child, in order to survive summary judgment, Holly must set forth expert
testimony demonstrating: ( 1) the appropriate standard of medical care, (2) that
the defendant breached the standard of care, and (3) that defendant's breach
was the proximate cause of the plaintiff's injury. Ouellette, 534 A.2d at 1332;
Cox, 406 A.2d at 622; cf. Curtis, 2001 ME 158, ,r 18, 784 A.2d 18.
Plaintiffs have failed to cite any expert testimony establishing the
appropriate medical standard of care owed to Holly regarding her emotional
well-being, that the Medical Defendants breached that standard of care, or that
the Medical Defendants' breach proximately caused Holly's severe emotional
22 distress. 5 Because Plaintiffs have failed to cite any expert testimony, Plaintiffs
have failed to put forth prima facie evidence demonstrating that Holly Wilson
had a viable direct claim for negligent infliction of emotional distress against the
Medical Defendants.
Even if Holly Wilson were limited to bystander liability, Plaintiffs have still
not put forth sufficient evidence that she had a viable claim against the Medical
Defendants. In order for a bystander to recover for negligent infliction of
emotional distress, the bystander must demonstrate: ( 1) that they were
present at the scene of the defendant's conduct; (2) that they "suffered severe
mental distress as a result of contemporaneously perceiving" that the
defendant's conduct was causing harm to the victim; and (3) that they were
closely related to the victim. Champagne, 1998 ME 87, ,I 13, 711 A.2d 842;
Nelson v. Flanagan, 677 A.2d 545, 548-49 (Me. 1996); Simmons, Zillman, &
Gregory, Maine Tort Law, § 7 .08 at 7-21 (replacing "accident" with
5 In their statement of material facts, Plaintiffs assert that Dr. Carpenter is designated to testify the Medical Defendants breached the standard of care owed to Holly Wilson and that the Medical Defendants' substandard care caused Holly to suffer anxiety and distress. (Pis. Opp. S.M.F. ,r 26; Pis. Add'I S.M.F. ,m 29-30.) However, Plaintiffs have failed to cite any testimony by Dr. Carpenter actually testifying to the standard of care owed to Holly regarding her emotional well-being or that Medical Defendants breached that standard of care. (Id.) Plaintiffs cite only to Dr. Carpenter's expert witness designations in the Wilson v. Mercy case and in this case to support these assertions. (Id.) As previously stated, expert witness designations are not admissible evidence. Therefore, the court may disregard these assertions. See M.R. Civ. P. 56(h)(4); Levine, 2001 ME 77, ,r 6, 770 A.2d 653.
23 "defendant's conduct" in the standard for bystander liability in medical
negligence cases).
It is indisputable that Holly Wilson was present at the scene of the Medical
Defendant's conduct and that she is closely related to Cassidy Wilson, the
victim. Thus, the only disputed element for bystander liability is whether Holly
"suffered severe mental distress as a result of contemporaneously perceiving"
that the Medical Defendant's conduct was causing the harm to Cassidy. The
Lilley Defendants assert that a bystander must demonstrate that her mental
distress was the result of contemporaneously perceiving both the defendant's
negligence and the harm to the victim. (Defs. Mot. Summ. J. 1 6.) Plaintiffs
argue there is no requirement that a bystander contemporaneously comprehend
that a defendant's conduct is negligent in order to recovery for their severe
emotional distress. (Pis. Opp'n to Defs. Mot. Summ J. 30-31 .) According to
Plaintiffs, a bystander need only show a contemporaneous awareness of the
"accident," i.e., the injury to the victim. (Id. at 31.)
In Nelson v. Flanagan, the Law Court explicitly stated that, because the
plaintiff's emotional distress was "not the result of an immediate perception of
[the defendant's conduct] he does not come within the class of plaintiffs who ...
are foreseeable indirect victims of a defendant's negligence." Nelson, 677 A.Zd
at 548. Quoting a California case, the Law Court further stated, "'when there is
24 observation of the defendant's conduct and the ... injury and contemporaneous
awareness the defendant's conduct or lack thereof is causing harm ... recovery
is permitted."' Id. at 549 (quoting Ochoa v. Superior Court, 703 P.Zd 1, 8 (Cal.
1985)) (alterations and emphasis in original). Thus, although a bystander need
not show contemporaneously awareness that the defendant's conduct was
negligent, in order to recover for negligent infliction of emotional distress, the
bystander must prove that their severe mental distress is a result of
contemporaneously perceiving that the defendant's conduct was causing the
harm to the victim.
Plaintiffs have failed to put forth prima facie evidence that Holly Wilson's
severe emotional distress was the result of contemporaneously perceiving that
the Medical Defendants' conduct was causing the harm to Cassidy. Holly
testified that she could see the fetal heart monitor and was told where the
heartbeat was on the monitor. (Pis. Opp. S.M.F. ~ 3; Pis. Add'I S.M.F. ~ 9.)
Holly testified that she was aware that Cassidy "lost her heartbeat three times
in delivery and labor" and that she "knew something was wrong." (Pis. Opp.
S.M.F. ~ 3.) At point one during the labor, Holly was told to get on her hands
and knees because there was no fetal heart rate. (Pis. Opp. S.M.F. ~ 3; Pis.
Add'! S.M.F. ~ 1 2.) Holly thought that something serious had happened and
that this was a "life or death moment" for her baby. (Id.) The next thing Holly
25 knew, she was going down the hall on a stretcher for an emergency caesarean
section. (Pis. Opp. S.M.F. ,r 3; Pis. Add'I S.M.F. ,r 14.) When Holly came out of
the anesthesia, she was in hysterics because she did not know what she had or
where her baby was. (Pis. Opp. S.M.F. ,r 3; Pis. Add'I S.M.F. ,r 18.) Although
these facts demonstrate that Holly Wilson suffered emotional distress, none of
these facts are prima facie evidence that Holly's emotional distress was the
result of contemporaneously perceiving that the Medical Defendants' conduct
was causing the harm to Cassidy. 6
To the contrary, Holly Wilson testified that, during the delivery, she did
not know if her doctor "was doing something they should not have done or not
doing something that they should have done." (Defs. Supp'g S.M.F. ,r 3.) Holly
testified that that she "put all the trust in doctors because I am not one." (Id.)
Ryan Wilson also testified that, after the delivery, Holly thought "she had done
6 In their statement of material facts, Plaintiffs assert that Or. Carpenter is designated to testify that Holly Wilson suffered anxiety and distress due to experiencing the delivery and birth of a child that was "floppy, not breathing, unresponsive, and requiring emergency transfer to a neonatal ICU." (Pis. Opp. S.M.F. ,r 26.) Defendants similarly assert in their statement of material facts that Dr. Carpenter would testify regarding Holly's distress from seeing a "floppy" child. (Defs. Supp'g S.M.F. ,r 27.) Both parties have failed to provide proper evidentiary support for these assertions. The parties cite only to Plaintiffs' expert witness designation to support their assertions. (Pis. Opp. S.M.F. ,r 26; Defs. Supp'g S.M.F. ,r 27.) As previously discussed, an expert witness designation is not admissible evidence. Therefore, the court may disregard these assertions. See M.R. Civ. P. 56(h)(4); Levine, 2001 ME 77, ,r 6, 770 A.2d 653. Even if the court were to consider these assertions of facts, these assertions demonstrate only that Holly Wilson suffered emotional distress, neither assertion is prima facie evidence that Holly's emotional distress "was the result of contemporaneously perceiving" that the Medical Defendants' conduct was causing the harm to Cassidy.
26 something wrong" and was "blaming herself for not being able to give birth."
(Defs. Supp'g S.M .F. ~ 5.) Based on the record before the court, Plaintiffs have
failed put forth any evidence that Holly's emotional distress was the result of
contemporaneously perceiving the Medical Defendants' conduct was causing the
harm to Cassidy. Therefore, Plaintiffs have failed to put forth prima facie
evidence establishing that Holly Wilson had a viable claim for bystander liability.
Because Plaintiffs have failed to demonstrate that Holly Wilson had any
viable claims against the Medical Defendants for personal injuries or emotional
distress, Plaintiffs have failed to show that any breach of a standard of care by
the Lilley Defendants proximately caused injury to Holly Wilson or that, but for
the alleged breach, Holly would have achieved a more favorable result .
Therefore, the Lilley Defendants are entitled to summary judgment on Holly
Wilson's individual claim for legal malpractice.
3. Whether Ryan Wilson had a viable claim for negligent infliction of emotional distress
As discussed above, in order for a bystander to recovery for negligent
infliction of emotional distress, the bystander must demonstrate: ( 1) that they
were present at the scene of the defendant's conduct; (2) that they "suffered
severe mental distress as a result of contemporaneously perceiving" that the
defendant's conduct was causing harm to the victim; and (3) that they were
closely related to the victim. Champagne, 1998 ME 87, ~ 13, 711 A.2d 842;
27 Nelson, 677 A.2d at 548-49; Simmons, Zillman, & Gregory, Maine Tort Law, §
7 .08 at 7-21 (replacing the term "accident" with "defendant's conduct"). In
order to satisfy the second element, the bystander must prove that their severe
mental distress is a result of contemporaneously perceiving that the
defendant's conduct was causing the harm to the victim. Nelson, 677 A.2d at
548-49.
Like Holly, there is no dispute that Ryan Wilson was present at the scene
of the Medical Defendant's conduct and that he was closely related to the
victim, Cassidy. However, Plaintiffs have failed to put forth prima facie evidence
that Ryan's emotional distress was the result of contemporaneously perceiving
that the Medical Defendants' conduct was causing the harm to Cassidy. During
the Wilson v. Mercy trial, Ryan testified that he watched the fetal heart rate
monitor "bounce right around," and that the heart rate monitor "dipped way
down a couple times and I thought this didn't seem right ... " (Pis. Opp. S.M.F. ,I
4; Pis. Add'I S.M.F. ,I 8.) Ryan also testified at trial that, at some point during
the labor, he saw the heart rate monitor drop and stay low for a while, a which
point the nurse ran out to get Dr. Roper. (Pis. Opp. S.M.F. ,I 4; Pis. Add'I S.M.F.
,I 1 0.) At his deposition, Ryan testified that that he witnessed "a heated
argument" between the nurse and Dr. Roper and thought "this can't be good."
(Id.) In an affidavit, Holly Wilson asserts that Ryan could see the fetal
28 monitoring strip and that watching decelerations on the fetal monitoring strip
made Ryan anxious and fearful of the status of the baby. (Pis. Add'I S.M.F. ~
9.) According to Holly, as time progressed and Dr. Roper did nothing to deliver
the baby, Ryan became increasingly upset. (Id.)
Although these facts demonstrate that Ryan Wilson suffered emotional
distress, none of these facts are prima facie evidence that Ryan
contemporaneously perceived that the Medical Defendants' conduct was
causing the harm to Cassidy. Furthermore, when asked at his deposition
whether he had "any sense that anybody was doing anything wrong with regard
to your wife's care," Ryan answered, "Other than the fight between [the nurse]
and Dr. Roper, no." (Defs. Supp'g S.M.F. ~ 6.)
Based on the record before the court, Plaintiffs have failed put forth any
evidence that Ryan's emotional distress was the result of contemporaneously
perceiving that the Medical Defendants' conduct was causing the harm to
Cassidy. Therefore, Plaintiffs have failed to put forth prima facie evidence
establishing that Ryan Wilson had a viable claim for bystander liability.
Because Plaintiffs have failed to demonstrate that Ryan Wilson had a
viable claim against the Medical Defendants, Plaintiffs have failed to show that
any breach of a standard of care by the Lilley Defendants proximately caused
injury to Ryan Wilson or that, but for the alleged breach, Ryan would have
29 achieved a more favorable result. Therefore, the Lilley Defendants are entitled
to summary judgment on Ryan Wilson's individual claim for legal malpractice.
D. Plaintiffs' Claims for Breach of Fiduciary Duty
As mentioned above, Plaintiffs' amended complaint also asserts claims for
breach of fiduciary. Plaintiffs' claims for breach of fiduciary are identical to their
claims legal malpractice. As discussed above, in legal malpractice actions, the
same rules of causation apply whether the claims are based in negligence,
contract, or breach of fiduciary duty. Steeves, 1998 ME 210, ,r 10 n.8, 718
A.2d 186. Because Plaintiffs have failed to set forth prima facie evidence of
causation for any of their claims of legal malpractice, Plaintiffs' claims for breach
of fiduciary duty fail for the same reasons. Therefore, the Lilley Defendants are
also entitled to summary judgment on Plaintiffs' claims that the Lilley
Defendants breach their fiduciary duty to Cassidy, Holly, and Ryan.
E. Plaintiffs' Claim for Fraud and Fraudulent Concealment
Lastly, Plaintiffs assert that the Lilley Defendants engaged fraud and
fraudulent concealment by knowingly failing to disclose to Holly Wilson and Ryan
Wilson that their individual claims were time-barred. (Pis. Opp'n to Defs. Mot.
Summ. J. 6.)
To prevail on a claim of fraud, the plaintiff must prove by clear and
convincing evidence that ( 1) the defendant a made a false representation; (2)
30 of a material fact; (3) with knowledge of its falsity or in reckless disregard of its
truth or falsity; ( 4) for the purpose of inducing the plaintiff to act in reliance
upon it; and ( 5) the plaintiff justifiably relied upon the fact as true to their
detriment. Me. Eye Care Assocs., P.A. v. Gorman, 2008 ME 36, ,r 12, 942 A.2d
707.
Similarly, to prevail on a claim of fraudulent concealment, the plaintiff
must prove the existence of "( 1) a failure to disclose; (2) a material fact; (3)
where a legal or equitable duty to disclose exists; ( 4) with the intention of
inducing another to act or to refrain from acting in reliance on the non
disclosure; and ( 5) which is in fact relied upon to the aggrieved party's
detriment." Picher v. Roman Catholic Bishop of Portland, 2009 ME 67, ,r 30,
974 A.2d 286.
Plaintiffs generally assert that, throughout the representation, the Lilley
Defendants never informed Holly or Ryan their individual claims were time
barred, that the Lilley Defendants had failed to file their individual claims within
the statute of limitations, or that their individual claims had been dismissed by
court. (Pis. Add'I S.M.F. ,r,r 40, 45, 48, 51, 53.) Plaintiffs assert that Lilley
told Holly and Ryan that he wanted to drop their individual claims, so that they
would not appear "money hungry" to the jury. (Id. ,r 53.)
31 However, Plaintiffs have not suffered a detriment, and therefore, cannot
assert claims for fraud or fraudulent concealment. As discussed above, Plaintiff
have failed to establish that Holly Wilson or Ryan Wilson had a viable claim
against the Medical Defendants for physical injuries or negligent infliction of
emotional distress. Therefore, even if the Lilley Defendants' conduct
constituted a material misrepresentation or a failure to disclosure a material
fact, Plaintiffs cannot establish that they relied on those misrepresentations or
non-disclosures to their detriment. Thus, the Lilley Defendants are entitled to
summary judgment on Plaintiffs' claims of fraud and fraudulent concealment.
CONCLUSIONS
Based on the foregoing, Defendants Daniel G. Lilley, P.A. and Daniel G.
Lilley, Esq.'s motion for summary judgment is GRANTED. Judgment is entered
for Defendants and against Plaintiffs on Counts 1, 2 and 3, which is the
Complaint in its entirety.
Still pending and unresolved by this ruling is Defendants' Counterclaim.
Defendants shall within 14 days notify the Court of their intentions regarding
the Counterclaim. The Court would entertain a motion to dismiss the
Counterclaim without prejudice, subject to the Counterclaim being renewed if
any part of Plaintiffs' Complaint is reinstated on appeal.
32 The Clerk is instructed to enter this Order on the docket for this case
incorporating it by reference pursuant to Maine Rule of Civil Procedure 79(a).
Dated: 12.. / 2., / ; 6 ~~ ---~~--------- Richard Mulhern Judge, Business & Consumer Court
fEniererl on !he Docket ·J.2:.J.J.::L.0 Copies sent via Mail -- E(ec!mnlc.
33 STATE OF MAINE BUSINESS AND CONSUMER COURT
Cumberland, ss.
HOLLY WILSON and RYAN WILSON, in dividually and as next friends of CASSIDY WILSON
Plaintiffs
v. Docket No. BCD-CV-15-16 /
D ANIEL G. LILLEY, P.A. a nd DANIEL G. LILLEY, ESQ.
Defendants
ORDER ON DEFENDANTS' MOTION TO STRIKE AFFIRMATIVE DEFENSES
Pursuant to M.R. Civ. P. 9(b) and 12(£), Defendants Daniel G. Lilley, P.A. and Daniel G.
Lilley, Esq. have filed a Motion To Strike Affirmative Defenses 4 and 6 to Defendants'
Counterclaim. Plaintiffs Holly and Ryan Wilson oppose the Motion. The court elects to decide
the Motion without oral argument.
In their reply to Defendants' counterclaim, Plaintiffs have pleaded fraud and fraud in the
inducement as the fourth and sixth numbered affirmative defenses. Defendants contend that
Rule 9(b) of the Maine Rules of Civil Procedure requires affirmative defenses, as well as claims,
alleging fraud to be pleaded with particularity.
Plaintiffs' Objection to Defendants' Motion to Strike notes that the Maine courts
require notice pleading only. Although "Maine is a notice pleading state, ... only requir[ing] a
short and plain statement of the claim to provide fair notice of the cause of action," Johnston v.
Me. Energy Recovery Co., 2010 ME 52, ~ 16, 19 A.sd 823, fraud must be pleaded in more detail
than other matters. "In all averments of fraud or mistake, the circumstances constituting fraud
or mistake shall be stated with particulardy. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." M.R. Civ. P. 9(b) (emphasis added); if. M.R. Civ.
P. 8. The requirement to plead fraud with particularity is to ensure "the defendant is fairly
apprised of the elements of the claim." 2 Harvey, Maine Civil Practice§ 9:2 at 384 (Sd ed. 2011).
Notably, the need for particularity in pleading fraud is not a new requirement in Maine. Any
party
seeking relief on the ground of fraud, accident or mistake, must directly charge the grounds relied upon. The statement should be so full and explicit as to show the court a clear picture of the particulars of the fraud, - the manner in which the party was misled, or imposed upon, - the character and causes of the accident, or mistake, and how it occurred. Without such a statement ... the court can not grant relief or even hear evidence in the matter.
Semo v. Goudreau, 147 Me. 17, 20-21, 8.S A.2d 209, 211 (1951).
Federal courts construing the counterpart federal Rule 9(b) are split on whether the rule
applies to affirmative defenses. See Cottle v. Falcon Holdings Management, LLC, No. 2:11-CV
95-PRC, 2012 WL 266968, *l (N.D. Ind. Jan. SO, 2012) (noting split among courts on the
issue).
The Supreme Judicial Court of Maine has not indicated whether the particularity in
pleading requirement of Rule 9(b) applies to affirmative defenses as well as to claims. However,
the United States Court of Appeals for the First Circuit has said, "Fraud is an affirmative
defense that must be pleaded with particularity." Bose Corp. v. Ejaz, 7.'32 F.Sd 17, 22 (ist Cir.
201.'3), citing Fed. R. Civ. P. 9(b). Because the Law Court frequently follows the First Circuit's
lead in interpreting federal rules that have Maine counterparts, this court concludes that the
Law Court likely would decide that the Rule 9(b) requirement of particularity applies to
affirmative defenses as well as to claims and causes of action. In sum, although Maine follows
the rule of notice pleadings, claims and affirmative defenses based on fraud are an exception to
the general rule. See Kaufmann v. Prudential Ins. Co. of America, No. 09-10239-RGS, 2009 WL
2 2449872, *I (D. Mass. Aug. 6, 2009) ("[w]ith the exception of fraud, the designation of a listed
defense is sufficient notice to a plaintiff of its basic thrust.")
Plain tiffs also argue that the basis for their affirmative defenses of fraud and fraud in the
inducement should be obvious, given that their complaint against Defendants includes a claim
of fraud and fraudulent concealment at Count III. The inference may indeed be obvious, but
the Defendants are still entitled to require the Plaintiffs to make the inference explicit, which
they can do simply by incorporating the paragraphs of Count III by reference in pleading their
affirmative defenses of fraud and fraud in the inducement.
Based on these reasons, the court will grant the Defendant's Motion to Strike.
Plaintiffs have requested leave to amend, in order to meet the objection, and leave will be
granted.
IT IS ORDERED: Defendants' Motion To Strike Affirmative Defenses 4 and 6 to
Defendants' Counterclaim is granted. Plaintiffs' fourth and sixth numbered affirmative
defenses to the counterclaim, of fraud and fraud in the inducement, are stricken. Plaintiffs may
file an amended reply to counterclaim, with affirmative defenses 4 and 6 pleaded with
particularity within 20 days.
Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate this order by
reference in the docket.
Dated April 9, 2015 L}Jt~ A. M. Horton Justice, Business and Consumer Court
3 Holly Wilson and Ryan Wilson, individually and as next friends of Cassidy Wilson v. Daniel G. Lilley, P.A. and Daniel G. Lilley, Esq.
BCD-CV-2015-16
Holly Wilson and Ryan Wilson, individually and as next friends of Cassidy Wilson Plaintiff
Counsel: Julian Sweet, Esq. Travis Brennan, Esq. 129 Lisbon Street PO Box 961 Lewiston, ME 04243-0961
Daniel G. Lilley, P.A. and Daniel G. Lilley, Esq. Defendant
Counsel: Jay Gregory, Esq. One International Place 11th Floor Boston, MA 02110 and Arthur Grief, Esq. 82 Columbia Street PO Box 2339 Bangor, ME 04402-2339