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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO, 2010-02378
GREGORY D. GIRARD,
mi
Plaintiff, xe
v.
so
KRISTINE A. GIRARD, M.D., AND am
oo
MASSACHUSETTS INSTITUTE OF TECHNOLOGY TD
2Q
e
Defendants.
DEFENDANTS’ OPPOSITION
TO PLAINTIFF’S MOTION TO BIFURCATE TRIAL
The defendants Kristine Girard, M.D. (“Dr. Girard”) and Massachusetts Institute of
Technology (“MIT”) oppose plaintiff's motion to bifurcate the liability and damages portions of
the trial of this matter, now set for October 17, 2018, on the following grounds:
1 On August 29, 2017 the Court convened a status conference and set the trial date
of this case for October 17, 2018. The plaintiff's motion for leave to file a motion for summary
judgement was denied as untimely and unwarranted. The plaintiff's instant motion for
bifurcation, raised for the first time six (6) months prior to trial, is similarly untimely and
unwarranted.
2. Mass.R.Civ.P. Rule 42(b) permits separate trials when necessary to further
an
convenience, avoid prejudice or expedite case resolution. Plaintiff's motion advances none of
those goals. The two (2) surviving causes of action to be tried by the plaintiff against the
defendants here sound in medical negligence and defamation. MIT’s liability is premised upon
the doctrine of respondeat superior only, The two claims, despite the multiple and alternative
theories advanced by the plaintiff, stem from precisely the same set of facts, and the plaintiff
CERTIFICATE OF SERVICE
I, Clare F. Carroll, counsel for defendant Kristine Girard, M.D., hereby certify that on
this day I served:
1 Defendants’ Opposition to Plaintiff’s Motion to Bifurcate Trial; and
2. Opposition of Defendant, Kristine A. Girard, M.D. to Plaintiff’s “Renewed”
Motion for Sanctions Against MIT and Dr. Kristine Girard for “Spoliation of
Evidence”
by first class mail on the following:
Bradford E. Keene, Esq.
Law Offices of Bradford Eliot Keene, P.C.
7 Kimball Lane, Ste. B
Lynnfield, MA 01940
Robert S. Wolfe, Esq.
Robert Wolfe Associates, P.C.
33 Union Street, Unit 2
Manchester, MA 01944
Paul McTague, Esq.
Martin, Magnuson, McCarthy & Kenney
101 Merrimac Street
Boston, MA 02114
Utne Hh Caript.
Attorney Clare F. Carroll
Date: April 13, 2018
=
bears the burden of proof on both. Significantly, to make out a prima facie. case of medical
negligence, the plaintife must prove all of the following: (1) the defendant as a physician owed
him a duty of care as a patient; (2) the defendant breached that duty; (3) the breach was the
proximate cause of (4) plaintiff's damages. Rahilly v. North Adams Regional Hospital, 36
Mass. App.Ct. 714 (1994). The plaintiff must prove that the broad range of damages he seeks to
Tecover were causally connected to a proven breach of the standard of care by a physician whose
duty of care extended to him as a patient. Among the elements of proof, “liability” comprises
both a breach of the standard of care and a causal connection to the alleged damages. The
“liability” issues, therefore, cannot be divested from the “damages” issues for purposes of trial.
3 The law generally disfavors bifurcation, as it results in extended adjudication and
greater expense to the litigants. Rabelo v. Nasif, et al., 30 Mass.L.Rptr. 547 (2012). Where
issues of liability and damages are significantly related, moreover, it is error to order a separate
trial on liability. United States Air Lines, Inc. v. Wiener, 286 F.2d 302 (1961)(emphasis added),
Simply stated, on these claims the plaintiff must prove that his damages flow proximately from
some act or omission of the defendants. The argument that liability and damages “are not
intertwined” defies the entire body of case law developed around tort claims.
4. The plaintiff makes no showing of prejudice, and points to no case in any
jurisdiction in which a trial Court’s decision not to bifurcate a civil proceeding has been grounds
for reversal. Dobos, et al. v. Paul Driscoll, et al., 404 Mass. 634 (1989). The plaintiff's
characterization of the defendants’ expert disclosures, copies of which he attaches to his motion,
has no bearing on the issue of bifurcation other than perhaps to underscore the notion that the
issue of “liability” in medical negligence claims encompasses both a deviation from the
applicable standard of care and a causal connection to the alleged “damages,” both of which
must be established by expert testimony. The claims advanced by the plaintiff here place
directly at issue his medical condition(s), diagnoses, treatment, work life, earnings and conduct,
among other questions, before, during and after his arrest and incarceration. The plaintiff must
prove not only that the defendants’ conduct was tortious but also that his alleged damages were
proximately caused thereby.
5 Whether the evidence to be adduced at trial is not favorable to the plaintiff
(“prejudicial to the plaintiff on liability”) on one or more issues does not equate to a showing of
“prejudice” warranting bifurcation. Plaintiff's contention that evidence of any of the events
following his release from Bridgewater State Hospital up to the present relates solely to his
“damages” and not to “liability” wholly ignores the element of causation as an integral and
inextricable part of his prima facie case. Again, the plaintiff must establish, by proof, not only
Dr. Girard’s liability for medical negligence and defamation, but also a causal connection
between those acts or omissions and the damages he claims. Evidence of events between 2010
and the present, then, particularly when compared or contrasted to events before or during 2010,
is directly relevant on the interconnected issues of liability, causation and damages.
The issues of liability and damages presented by these claims are inextricably intertwined
and require a single trial. For the reasons set forth above, the defendants Kristine Girard, M.D.
and Massachusetts Institute of Technology respectfully request that this Honorable Court DENY
plaintiff's motion and ORDER that the trial of this matter proceed as scheduled on October 17,
2018 without further delay.
so
Respectfully submitted,
Defendant Kristine Girard, M.D.
By her attorneys,
Douglas A. Morgan, BBO #557653
Clare F. Carroll, BBO #564140
McCarthy Bouley Barry & Morgan P.C.
400 Fifth Avenue, Sth Floor
Waltham MA 02451
(617) 225-2211
dam@mbblaw.com
cfc@mbblaw.com
Defendant Massachusetts Institute of
Technology,
By its attorneys,
Cau m-ncTa puro
Paul M. McTague, BBO #541779
Sarah Ann Greenhalgh, BBO #689292
Martin Magnuson McCarthy & Kenney, P.C
101 Merrimac Street
Boston, MA 02114
(617) 227-3240
pmctague@mmmk.com
sgreenhalgh@mmmk.com
DATED: April 13, 2018
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qb: | COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO, 2010-02378 GREGORY D. GIRARD, mi Plaintiff, xe v. so KRISTINE A. GIRARD, M.D., AND am oo MASSACHUSETTS INSTITUTE OF TECHNOLOGY TD 2Q e Defendants. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO BIFURCATE TRIAL The defendants Kristine Girard, M.D. (“Dr. Girard”) and Massachusetts Institute of Technology (“MIT”) oppose plaintiff's motion to bifurcate the liability and damages portions of the trial of this matter, now set for October 17, 2018, on the following grounds: 1 On August 29, 2017 the Court convened a status conference and set the trial date of this case for October 17, 2018. The plaintiff's motion for leave to file a motion for summary judgement was denied as untimely and unwarranted. The plaintiff's instant motion for bifurcation, raised for the first time six (6) months prior to trial, is similarly untimely and unwarranted. 2. Mass.R.Civ.P. Rule 42(b) permits separate trials when necessary to further an convenience, avoid prejudice or expedite case resolution. Plaintiff's motion advances none of those goals. The two (2) surviving causes of action to be tried by the plaintiff against the defendants here sound in medical negligence and defamation. MIT’s liability is premised upon the doctrine of respondeat superior only, The two claims, despite the multiple and alternative theories advanced by the plaintiff, stem from precisely the same set of facts, and the plaintiff CERTIFICATE OF SERVICE I, Clare F. Carroll, counsel for defendant Kristine Girard, M.D., hereby certify that on this day I served: 1 Defendants’ Opposition to Plaintiff’s Motion to Bifurcate Trial; and 2. Opposition of Defendant, Kristine A. Girard, M.D. to Plaintiff’s “Renewed” Motion for Sanctions Against MIT and Dr. Kristine Girard for “Spoliation of Evidence” by first class mail on the following: Bradford E. Keene, Esq. Law Offices of Bradford Eliot Keene, P.C. 7 Kimball Lane, Ste. B Lynnfield, MA 01940 Robert S. Wolfe, Esq. Robert Wolfe Associates, P.C. 33 Union Street, Unit 2 Manchester, MA 01944 Paul McTague, Esq. Martin, Magnuson, McCarthy & Kenney 101 Merrimac Street Boston, MA 02114 Utne Hh Caript. Attorney Clare F. Carroll Date: April 13, 2018 = bears the burden of proof on both. Significantly, to make out a prima facie. case of medical negligence, the plaintife must prove all of the following: (1) the defendant as a physician owed him a duty of care as a patient; (2) the defendant breached that duty; (3) the breach was the proximate cause of (4) plaintiff's damages. Rahilly v. North Adams Regional Hospital, 36 Mass. App.Ct. 714 (1994). The plaintiff must prove that the broad range of damages he seeks to Tecover were causally connected to a proven breach of the standard of care by a physician whose duty of care extended to him as a patient. Among the elements of proof, “liability” comprises both a breach of the standard of care and a causal connection to the alleged damages. The “liability” issues, therefore, cannot be divested from the “damages” issues for purposes of trial. 3 The law generally disfavors bifurcation, as it results in extended adjudication and greater expense to the litigants. Rabelo v. Nasif, et al., 30 Mass.L.Rptr. 547 (2012). Where issues of liability and damages are significantly related, moreover, it is error to order a separate trial on liability. United States Air Lines, Inc. v. Wiener, 286 F.2d 302 (1961)(emphasis added), Simply stated, on these claims the plaintiff must prove that his damages flow proximately from some act or omission of the defendants. The argument that liability and damages “are not intertwined” defies the entire body of case law developed around tort claims. 4. The plaintiff makes no showing of prejudice, and points to no case in any jurisdiction in which a trial Court’s decision not to bifurcate a civil proceeding has been grounds for reversal. Dobos, et al. v. Paul Driscoll, et al., 404 Mass. 634 (1989). The plaintiff's characterization of the defendants’ expert disclosures, copies of which he attaches to his motion, has no bearing on the issue of bifurcation other than perhaps to underscore the notion that the issue of “liability” in medical negligence claims encompasses both a deviation from the applicable standard of care and a causal connection to the alleged “damages,” both of which must be established by expert testimony. The claims advanced by the plaintiff here place directly at issue his medical condition(s), diagnoses, treatment, work life, earnings and conduct, among other questions, before, during and after his arrest and incarceration. The plaintiff must prove not only that the defendants’ conduct was tortious but also that his alleged damages were proximately caused thereby. 5 Whether the evidence to be adduced at trial is not favorable to the plaintiff (“prejudicial to the plaintiff on liability”) on one or more issues does not equate to a showing of “prejudice” warranting bifurcation. Plaintiff's contention that evidence of any of the events following his release from Bridgewater State Hospital up to the present relates solely to his “damages” and not to “liability” wholly ignores the element of causation as an integral and inextricable part of his prima facie case. Again, the plaintiff must establish, by proof, not only Dr. Girard’s liability for medical negligence and defamation, but also a causal connection between those acts or omissions and the damages he claims. Evidence of events between 2010 and the present, then, particularly when compared or contrasted to events before or during 2010, is directly relevant on the interconnected issues of liability, causation and damages. The issues of liability and damages presented by these claims are inextricably intertwined and require a single trial. For the reasons set forth above, the defendants Kristine Girard, M.D. and Massachusetts Institute of Technology respectfully request that this Honorable Court DENY plaintiff's motion and ORDER that the trial of this matter proceed as scheduled on October 17, 2018 without further delay. so Respectfully submitted, Defendant Kristine Girard, M.D. By her attorneys, Douglas A. Morgan, BBO #557653 Clare F. Carroll, BBO #564140 McCarthy Bouley Barry & Morgan P.C. 400 Fifth Avenue, Sth Floor Waltham MA 02451 (617) 225-2211 dam@mbblaw.com cfc@mbblaw.com Defendant Massachusetts Institute of Technology, By its attorneys, Cau m-ncTa puro Paul M. McTague, BBO #541779 Sarah Ann Greenhalgh, BBO #689292 Martin Magnuson McCarthy & Kenney, P.C 101 Merrimac Street Boston, MA 02114 (617) 227-3240 pmctague@mmmk.com sgreenhalgh@mmmk.com DATED: April 13, 2018