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The law firm of SJ Spero & Associates, P.C. represented a victim of sexual abuse by a physician. A settlement was reached. At the time of the settlement, the licensing board for medical doctors had already commenced disciplinary proceedings into the offending physician's conduct which had precipitated the original litigation. When the administrative investigation proceeded, the victim was served a subpoena to testify by the licensing board. As her participation was involuntary, the victim did not breach the terms of her settlement with the doctor. The doctor, however, sued the victim for breach of her settlement. The lawsuit was dismissed in 1999 pursuant to the Massachusetts Anti-SLAPP statute. What follows is the decision of the trial court. However, certain names and other identifying information have been altered to protect the privacy of those involved.
Cecil D. Medicinebag, M.D. v. Female Victim
Plaintiff, Cecil D. Medicinebag, M.D. (" Medicinebag "), bought
this action against defendant, Female Victim ("Victim "), to recover damages
for purported violations of a confidentiality provision contained in a
settlement agreement. Medicinebag's seven count complaint seeks
relief for breach of contract (Count I), fraud (Count II), common law deceit
(Count III), intentional misrepresentation (Count IV), breach of the implied
covenant of good faith and fair dealing (Count V), intentional infliction
of emotional distress (Count VI), and interference with advantageous (business)
relationships (Count VII). Victim now moves to dismiss the complaint
under G.L.c. 231, 59H, asserting that the actions complained of occurred
during the exercise of her right to petition the government. Victim
further asserts Medicinebag's claims are barred because she is immune from
liability under G.L.c. 112, section 5, as a "provider
[of] information to the Board [of Registration of Medicine]." Medicinebag
responds that Victim's conduct concerns private, tortious behavior not
within the protected ambit of 59H. For the following reasons, Victim's
motion is ALLOWED.
OPINION:
MEMORANDUM OF DECISION AND ORDER ON
The following facts are taken from the pleadings and supporting and
opposing affidavits under G.L.c. 231, 59H, see Bisognano v. Jain, 1995
Mass. Super. LEXIS 104, Civil Action No. 94-6879, 4 MASS. L. RPTR. No.
30, 671, 672 (Middlesex Super. In 1996, Victim filed an action against Medicinebag, her former physician
and therapist, in the Middlesex County Superior Court, Civil Action No.
_________, alleging that Medicinebag committed medical malpractice and
violated G.L.c. 93A. On
On
DISCUSSION
A. Background of G.L.c. 231, 59H. Specifically, 59H protects citizens by enabling a defendant to bring
a "special motion to dismiss" if a civil claim against her is based on
the defendant's exercise of her constitutional "right of petition." G.L.c.
231, 59H. The anti-SLAPP statute broadly defines a party's
"exercise of a right of petition" to include "any written or oral statement
made before or submitted to a governmental body in connection with any
issue under that body's review; [and] any [written or oral] statement likely
to encourage consideration or review by a governmental body." Bisognano,
4 Judicial review under 59H, however, is not automatic. Before this court
may properly consider the merits of such a special motion to dismiss, the
moving party, Victim here, must make a prima facie showing of the applicability
of 59H. See Lee v. Whalen, 1998 Once Victim has satisfied this initial hurdle, the burden shifts to
Medicinebag to show that (1) Victim's exercise of her right of petition
was devoid of any reasonable factual support or any arguable basis in law;
and that (2) Victim's acts caused him actual injury. G.L.c. 231, 59H. See
Zoppo v. Foster, 1997
More commonly known as the anti-SLAPP n2 statute, G.L.c. 231, 59H was
enacted to frustrate lawsuits ("SLAPP suits") that appeared to be designed
to chill citizens' lawful exercise of their right to petition the government
for redress of grievances. See Duracraft Corp. v. Holmes Products Corp.,
427
"The focus of the statutory test is not, however, on the plaintiff's
claim, but rather on the petitioning activity that the special movant asserts
bars the plaintiff's claim." Duracraft, supra at 165. Victim
asserts that her appearance before the Board is such a petitioning activity
that is protected by 59H. As aforesaid, 59H broadly defines
the "right to petition" to include virtually "any written or oral statements
made before or submitted to a governmental body in connection with any
issue under that body's review." Bisognano, 4 Based on the aforementioned, this court finds that Victim has reasonably
asserted that her written and/or oral statements made in the course of
the Board's investigation were made during an exercise of her "right to
petition" as defined, and as protected by 59H. The burden now shifts
to Medicinebag to show why Victim's special motion should not be allowed.
1. Victim's Burden.
To surmount her initial hurdle, as set forth above, Victim
must show, and this court must find, that her testimony before the Board
falls within the penumbra of protections afforded, and as defined by,
59H. Section 59H protects citizens, such as Victim, by dismissing
claims arguably designed to chill the right to petition the government
or agencies of the government. Medicinebag maintains that the underlying
action concerns private concerns of contract, fraud, and misrepresentation
and breaches of good faith and fair dealing, and thus has nothing to do
with attempts to silence Victim from exercising her right to petition the
government. n3
To withstand the instant motion, Medicinebag must show that Victim's
testimony before the Board (1) "was devoid of any reasonable factual support
or arguable basis in law" and (2) caused him harm. G.L.c. 231, 59H.
If Medicinebag fails to sustain his burden, this court must grant Victim's
motion. See id. This is "a nearly insurmountable barrier" to overcome.
Duracraft Corp., 427 Medicinebag argues that Victim appeared before the Board and voluntarily
and tortiously disclosed the terms of the Release. Medicinebag's
argument fails for two reasons. First, Victim had a contractual right under
the Release to disclose the information. Specifically, the Release provides
that:
[Victim] and [her] attorneys will maintain the confidentiality of this
settlement and the specific terms hereof. No information concerning this
settlement may be disclosed, except that [Victim], or [her] attorneys,
may disclose the terms of this settlement to any public agency entitled
to receive such information according to its rules and regulations or applicable
statute. (Emphasis added.) Victim Aff., Ex. A, pp. 34.
It is clear that the Release permitted Victim to disclose its terms
to "any public agency" and thus clearly contemplated that she may disclose
the settlement to the Board. Furthermore, it is undisputed that the Board
is a public agency that is entitled to receive information concerning the
Release. See Levy, 378 Second, while it may be true that Victim did not maintain the confidentiality
of the Release, it is unreasonable to suggest that, by failing to move
to quash the subpoena, Victim voluntarily appeared before the Board.
Victim had a duty to turn over the Release to the Board, Mass.R.Civ.P.
45 (subpoena is a command to appear to testify and/or produce documents
for inspection and failure to obey punishable by contempt). n5
Based on the foregoing, it could arguably be concluded that the purpose
of Medicinebag's action was not to win it, but to intimidate
Victim into refusing to appear and testify before the Board. In short,
given the clear import of the Release, the uncontested fact that Victim
appeared before the Board at its request, and the Board's duty to collect
information concerning settlement of medical malpractice actions, this
court finds that Medicinebag has failed to satisfy his burden of demonstrating
that Victim's exercise of her right to petition was "devoid of any reasonable
factual support or arguable basis in law." The court need not reach the
second prong of Medicinebag's showing, whether Victim caused him injury,
at this time.
ORDER
For the foregoing reasons, after hearing, the court hereby ORDERS that
the Defendant's Special Motion to Dismiss under G.L.c. 231, 59H is ALLOWED.
The defendant, Female Victim, may submit an affidavit of attorneys fees
for the purpose of assessing costs against the plaintiff, Cecil D.
Medicinebag. See G.L.c. 231, 59H .
Justice of the Superior Court
DATED:
_________________
Footnotes
n1
The Board of Registration of Medicine is such a public agency. See Levy
v. Board of Registration and Discipline of Medicine, 378 n2 SLAPP is
an acronym for "strategic litigation against public participation." G.L.c.
231, 59H.
n3 Medicinebag's efforts to distinguish
matters of private and public concern is unconvincing and are not supported
by established legal precedent. See Duracraft, supra at 164 (holding, in
no uncertain terms, that 59H applies to activity that does not involve
matters of public concern). Accord Haddad v. Grossman, 1999 n4 Medicinebag contends that this
court must apply the standard of review as set forth in Mass.R.Civ.P. 12(b)(6).
His position is misguided and not based on applicable law. He cites to
and relies on Baker v. Coxe, 940 F. Supp. 409, 417 (D. Mass. 1996) (examining
anti-SLAPP motion under the "well worn" standards governing Fed.R.Civ.P.
12(b)(6) and "not [under] the hybrid statutory procedure in section
59H which is more akin to a summary judgment motion."). The
standard of review under 59H differs markedly from the traditional
motion to dismiss for failure to state a claim upon which relief can be
granted, (Rule 12(b)(6)), or for summary judgment, (Rule 56(c)). See Margolis
v. Gosselin, 1996