Motion-Secondary: Douglas A. Capak Personal Representative for the Estate of Dawn Marie Roberts vs. Shelton, M.D., Cloe F. et al

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                                COMMONWEALTH OF MASSACHUSETTS


BARNSTABLE, SS.                                                        SUPERIOR COURT
                                                                       CIVIL ACTION
                                                                       NO. 1872CV00606


 DOUGLAS A. CAPAK, PERSONAL REPRESENTATIVE
 OF THE ESTATE OF DAWN MARIE ROBERTS,
                              Plaintiff,
 Vv

CLOE F, SHELTON, M.D.,
ANTHONY CARAVELLO, M.D.,
SHARON MAHONEY, M.D.,
SUSAN ANDEREGG, M.D.,
CAPE COD HOSPITAL,
TRISTAN MEDICAL P.C.,
G. CURTIS BARRY, M.D., P.C., AND.
CAPE OBSTETRICS & GYNECOLOGY, P.C.,
                       Defendants.


  PLAINTIFF’S OPPOSITION TO MOTION JN LIMINE OF DEFENDANTS CLOE F.
  SHELTON, M.D. AND ANTHONY CARAVELLO, M.D, TO COMPEL DISCLOSURE
   OF THE MONETARY DAMAGE AMOUNT THE PLAINTIFF WILL PRESENT TQ
                              THE JURY

       Now comes the Plaintiff and opposes the Motion i Limine of Defendants Cloe F. Shelton,

M.D. and Anthony Caravello, M.D. for an Order compelling Plaintiff's counsel to disclose the

monetary damages amount that will be presented to the Jury at trial.

       As grounds, the Plaintiff states this is a medical malpractice action in which the Plaintiff

seeks money damages.    The Plaintiff contends that there is no justifiable reason for requiring the

Plaintiffto disclose work product to opposing counsel prior to his counsel’s closing argument.

       In civil actions in the superior court, parties, through their counsel, may suggest a specific

monetary amount for damages at trial.      M.G.L. c. 231 §13B.    Nothing in the statute supports a

requirement that the amount of suggested damages be disclosed prior to closing arguments and has
no basis in precedent.     To require such a disclosure would be to force the Plaintiffs counsel to

disclose opinion work. product which is afforded an even greater privilege than factual work

product. The work product doctrine is “intended to enhance the vitality of an adversary system of

litigation by insulating counsel's work from intrusions, inferences, or borrowings by other parties

as [counsel] prepares for the contest.”    Ward v. Peabody, 380 Mass. 805, 817 (1980).      The work

product doctrine is codified in Mass: R. Civ. P. 23(b)(3) and states that the Court shall protect

against disclosure of the mental impressions, conclusions, opinions, or legal theories ofan attorney

or other representative of a party concerning the litigation.     The purpose of the doctrine is to

establish a “zone of privacy for strategic litigation planning       .. to prevent one party from

piggybacking on the adversary's preparation.” Commissioner of Revenue v. Comcast Corp., 453

Mass   293.     311-312   (2009).   “Opinion”   work product is afforded    greater   protection   than

“fact” work product. In re Gran Jury Subpoena, 220 F.R.D, 130, 145 (D. Mass. 2004),         Disclosure

is appropriate only in extremely unusual circumstances.     Commissioner of Revenue, at 314.

           In this matter, Defendants’ counsel is squarely trying to gain access to opinion work

product.      To suggest that the number the Plaintiff's counsel intends to suggest as appropriate

damages should be disclosed prior to closing arguments flies in the face of the work product

doctrine.     Worse, the Defendants’ Motion forces the Plaintiff's counsel to commit to an aspect of

his closing argument before the actual closing argument.        Decisions are routinely made during

closing arguments about what aspects of the closing argument strategy should actually be made in

the moment and which should be discarded. Forcing disclosure prior to the closing argument may

commit the attorney to make an argument he or she otherwise may have abandoned, particularly

if the argument is addressed in defense counsel's earlier closing argument.
The amount in damages, which includes the subjective amount applied to conscious pain

and suffering and loss of consortium, would be solely based upon counsel’s mental impressions

and opinions as to the strength of the evidence in the plaintiff's favor. The Plaintiff
                                                                                      has the burden

of proofat trial, and thus is given the privilege of addressing the jury last in time at trial. There is

absolutely no legal premise that allows for the Plaintiffs counsel to demand a “preview” of defense

counsel’s closing argument so that he or she can adequately prepare to rebut their arguments.

Likewise, there is no reason to require the Plaintiff to provide the defense with such a “preview”

or to allow the Defendants an opportunity to rebut the Plaintiff counsel’s closing argument.         All

parties will have heard the same evidence at trial and can address liability, causation, and damages

however they choose in closing arguments.

        Wherefore, the Plaintiff respectfully requests that this Honorable Court deny the Motion in

Limine of Defendants Cloe F. Shelton, M.D. and Anthony Caravello, M.D. to compel disclosure

of the monetary damage amount the Plaintiff will present to the jury.


                                                        Respectfully submitted,

                                                        The Plaintiff,
                                                        By his attorneys,

                                                        4/ Adam R. Satin
                                                        Adam R, Satin, BBO# 633069
                                                        Lynn I. Hu, BBO# 690823
                                                        Lubin & Meyer, P.C.
                                                        100 City Hall Plaza
                                                        Boston, MA 02108
                                                        (617) 720-4447
                                                         satin@lubinandmever.com
                                                        lhu@lubinandmeyer.com