Preview
\4/A
15 149
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
Hampshire, ss. Superior Court Department
Civil Action No. 1580CV00149
CHRISTINE M. BUCKHOUT,
Plaintiff,
Vv.
THOMAS M. KEENAN AND
LISA KETCHER,
Defendants.
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO CONSOLIDATE
Plaintiff, Christine M. Buckhout (“Buckhout” or “Plaintiff’), through her counsel, hereby :
requests this Honorable Court to deny the Motion to Consolidate of Defendants, Thomas M. Keenan
and Lisa Ketcher (jointly “Defendants”). The aim of Defendants’ Motion is to fuse completely the
above-captioned civil action with Rivera v. Ketcher et al., No. 1579CV00433 (Hampden Cnty.
Super. Ct. July 1, 2015). As discussed in this Opposition, Plaintiff respectfully requests this Court
deny Defendants’ Motion to Consolidate because (A) both actions involve different questions of law
and fact, and (B) fusing the two cases will create substantial potential for confusion before a jury.
The percentages of liability per party will vary depending on which vehicle a party was in. Such
issues in a multi-party case are confusing and unwieldy for a jury to manage. Further, it will
unnecessarily increase the cost for Buckhout to litigate and require her to participate in discovery
irrelevant to her action. Finally, the Rivera case is likely at the close of the time for discovery, so
Buckhout may be prejudiced by being consolidated into a case that she did not participate in.
L FACTUAL AND PROCEDURAL BACKGROUND
On or about July 27, 2012, Buckhout was a passenger in a motor vehicle traveling in a
northerly direction on Walnut Street Extension in Agawam, Massachusetts. Compl. 4. Buckhout’sspouse, Keith Buckhout (“Keith”), was not only operating the car in which Plaintiff was riding, he
was also the lawful owner of the automobile as well. Compl. 4. Eventually, Buckhout and Keith
stopped for a red traffic light at the intersection of Walnut Street Extension and Springfield Street.
Compl. { 5. After the traffic light turned green, Buckhout and Keith began to proceed northerly
through the intersection. Compl. 6. At the same time, the vehicle of the Rivera plaintiff—Carmen
Rivera—was stationed in the above-referenced intersection, attempting to turn left onto Springfield
Street. See Compl. 7.
as Buckhout and Keith proceed through the intersection, the automobile in which they were
traveling was struck on the right, passenger side by the vehicle that Lisa Ketcher (“Ketcher”) was
operating. Compl. 8. At the time of the collision, Ketcher was traveling in a westerly direction on
Springfield Street, Compl. { 10, and the car that she was operating was owned by Thomas M. Keenan
(“Keenan”), Compl. 9. Due to the immense force of the collision, the motor vehicle in which both
Keith and Buckhout were traveling (1) was forced into the southbound lane of Walnut Street
Extension, and (2) collided into Carmen Rivera’s automobile, which was in the process of turning
onto Springfield Street from Walnut Street Extension. Compl. {| 12. As a result of the collision,
Plaintiff suffered several physical injuries. Compl. {J 13 & 17.
Almost three years after the above-described accident occurred, Rivera was initiated.
Specifically, on July 1, 2015, Carmen Rivera filed an undifferentiated complaint against Ketcher in
Hampden County Superior Court. On August 18, 2015, Carmen Rivera amended her complaint, and
approximately five months thereafter, Ketcher filed a third-party complaint against Keith for
contribution. On the other hand, the instant action was commenced on July 23, 2015. In particular,
Buckhout filed a two-count complaint in Hampshire County Superior Court against Ketcher and
Keenan, alleging common-law negligence, see Compl. {ff 14-17, and negligent entrustment of a
motor vehicle, see Compl. {J 18-23, respectively. Now, Carmen Rivera seeks to fuse together Riveraand the instant action through her Motion to Consolidate. In Massachusetts, a consolidation of civil
actions is governed by Rule 42 of the Massachusetts Rules of Civil Procedure.
I. LEGAL STANDARD
“Rule 42(a) authorizes consolidation of ‘actions involving a common question of law or fact,’
and such further procedural orders ‘as may tend to avoid unnecessary costs or delay.’”
Trenz v. Family Dollar Stores of Mass., Inc., 73 Mass. App. Ct. 610, 613 (2009). Specifically, “[iJn
considering whether to consolidate two or more cases, a trial court judge is required to conduct a
two-part analysis.” Unifund CCR Partners v. Mendel, No. 06-WAD-05, 2007 WL 1098640, at *1
(Mass. App. Div. April 10, 2007). “As a threshold issue, a judge must determine whether the two
proceedings involve a common party and common issues of fact or law.” Jd. (internal quotation
marks omitted). “If the cases involve common parties and common issues of fact or law, then the
judge must weigh the costs versus the benefits of consolidation, namely, the interests of judicial
economy versus the concern for a fair trial.” Id.; see also City of Springfield v. Civil Serv. Comm'n,
403 Mass. 612, 615 n.3 (1988) (“Though a judge may order consolidation under Mass.R.Civ.P.
42(a), 365 Mass. 805 (1974), when there are common questions of law or fact, it is discretionary.”).
“It is appropriate to consider, when weighing the costs and benefits of consolidation, the
convenience or inconvenience to the parties, the judicial economy, the savings in time, effort or
expense and ‘any confusion, delay or prejudice that might result from consolidation.”” Mendel, 2007
WL 1098640, at *1 (quoting Cruickshank v. Clean Seas Co., 402 F.Supp.2d 328, 341
(D.Mass.2005)); see also Chavoor v. Lewis, 383 Mass. 801, 806 n.5 (1981) (“As a general principle,
we apply to our rules of civil procedure the construction given to the cognate Federal rules.”).
“{W]hen sufficient prejudice is demonstrated by the party opposing consolidation, then
‘[cJonsiderations of convenience and economy must yield to a paramount concern for a fair andimpartial trial.” Mendel, 2007 WL 1098640, at *1 (alteration in original) (quoting Johnson v.
Celotex Corp., 899 F.2d 1281, 1285 (2nd Cir.1990)).
Il. ARGUMENT
Plaintiff opposes Carmen Rivera’s Motion to Consolidate to the extent that (A) both actions
involve different questions of law and fact, and (B) fusing the two cases will create substantial
potential for confusion before a jury.
A. Because the Instant Action and Rivera Involve Different Issues of Law and Fact, This Court
Should Deny the Motion to Consolidate.
The instant action contains different facts and law as opposed to Rivera. First,
notwithstanding an allegation of common-law negligence in both cases, the factual issue of damages
in each case is entirely different. Specifically, Buckhout has an injury that will require the testimony
of medical experts, including but not limited to Charles A. Mick, MD. Buckhout understands
Carmen Rivera’s injury may also involve medical testimony due to her substantial medical treatment.
Moreover, the instant action involves an allegation of negligent entrustment of a motor vehicle
against Keenan; Carmen Rivera alleges no such legal theory. To bolster, Keenan is not even a party
in Rivera.
B. Because Fusing the Two Cases Will Create Substantial Potential for Confusion, This Court
Should Deny the Motion to Consolidate .
Analogous to Nixon v. General Motors Corporation, No. CA001123C, 2000 WL 1512369, at
*] (Mass. Super. Aug. 24, 2000), consolidation of the instant action and Rivera will create
substantial potential for confusion before a jury. Specifically, Nixon addressed General Motors
Corporation’s Rule 42(a) motion. 2000 WL 1512369, at *1. Although the two cases that General
Motors sought to fuse arose out of the same, single motor vehicle accident, id., the court still denied
the defendant’s Rule 42(a) motion, id. In so doing, the court reasoned that “two inappropriate results”
could ensue from granting the motion to consolidate. Jd. With respect to the second inappropriate
4result, the court reasoned that “[t]he fusion of the two cases, despite the fact that they arise out of the
same single vehicle accident, given the current plaintiff's professed different theories of liability, will
_create substantial potential for confusion before a jury and for the presiding judge.” Jd. ! The court
highlighted the potential for confusion by posing a series of hypothetical inquiries—“[w]hat
evidence, from which expert witness, or which internal General Motors document, or other source,
should the jury consider only on behalf of or against the plaintiff here, and what evidence may the
jury consider on behalf of or against the plaintiffs in the original action?” Jd.
Here, Nixon is controlling. Factually, the instant action and Rivera arise out of the same
motor vehicle accident, involving consecutive impacts with different cars, which is analogous to the
cases at issue in Nixon. Additionally, Buckhout asserts multiple, different theories of liability against
the respective Defendants; in contrast, Carmen Rivera levies only one, undifferentiated theory of
liability against a single defendant — Ketcher. This factor mirrors Nixon to the extent that the plaintiff
there “professed different theories of liability.” Jd. In light of these analogous factors, the rationale
of Nixon leads to the conclusion that the instant action and Rivera should not be fused together.
Notwithstanding the fact that the instant action and Rivera arise from the same nucleus of operative
facts, Plaintiff's different theories of liability against the two Defendants and the different medical
injuries with expert testimony will require the jury to consider a large volume of evidence—
including trial testimony, depositions, and medical and other documents. Further, Carmen Rivera’s
case will involve different types of proof than Buckhout’s as to liability. Such a trial would require
intellectual gymnastics of the kind that can create substantial potential for jury confusion.
' This Opposition relies on the second of the inappropriate results that the superior court identified — i.e. substantial
potential for confusion — and not the first result — i.e. depriving a plaintiff of a fair opportunity to prepare and present
his or her case and the theories that support it. Buckhout’s exclusive reliance on the former rationale does not
undercut the force of her legal argument in Part IIIB. of this Opposition because, as the Supreme Judicial Court has
recognized, “[c]onsideration of potential delay and confusion alone may warrant denying consolidation.” City of
Springfield v, Civil Serv. Comm’n, 403 Mass. 612, 615 n.3 (1988) (emphasis added).
5rs
Iv. CONCLUSION
For the foregoing reasons, Plaintiff Christine Buckhout respectfully requests this Honorable
Court to deny Defendants Lisa Ketcher and Thomas M. Keenan’s Motion to Consolidate.
PLAINTIFF, CHRISTINE M. BUCKHOUT,
Date: March 22, 2016
cGan, Esq. (BBO# 556755)
BRODEUR-McGAN, P.C.
1380 Main Street, Suite 202
Springfield, MA 01103
(413) 735-1775; Fax: (413) 735-1772
lbm@brodeurmegan.com
CERTIFICATE OF SERVICE
I, Lisa Brodeur-McGan, do hereby certify that I made service of the foregoing document
on this 22™ day of March, 2016, by first class mail, postage prepaid, to: Ronald E. Harding, Esq.,
and Allison K. Gurley, Esq., Weston Patrick, P.A., 84 State Street, 1% Floor, Boston, MA
02109.
Lisa Bro cGan
Preview
\4/A 15 149 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT Hampshire, ss. Superior Court Department Civil Action No. 1580CV00149 CHRISTINE M. BUCKHOUT, Plaintiff, Vv. THOMAS M. KEENAN AND LISA KETCHER, Defendants. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO CONSOLIDATE Plaintiff, Christine M. Buckhout (“Buckhout” or “Plaintiff’), through her counsel, hereby : requests this Honorable Court to deny the Motion to Consolidate of Defendants, Thomas M. Keenan and Lisa Ketcher (jointly “Defendants”). The aim of Defendants’ Motion is to fuse completely the above-captioned civil action with Rivera v. Ketcher et al., No. 1579CV00433 (Hampden Cnty. Super. Ct. July 1, 2015). As discussed in this Opposition, Plaintiff respectfully requests this Court deny Defendants’ Motion to Consolidate because (A) both actions involve different questions of law and fact, and (B) fusing the two cases will create substantial potential for confusion before a jury. The percentages of liability per party will vary depending on which vehicle a party was in. Such issues in a multi-party case are confusing and unwieldy for a jury to manage. Further, it will unnecessarily increase the cost for Buckhout to litigate and require her to participate in discovery irrelevant to her action. Finally, the Rivera case is likely at the close of the time for discovery, so Buckhout may be prejudiced by being consolidated into a case that she did not participate in. L FACTUAL AND PROCEDURAL BACKGROUND On or about July 27, 2012, Buckhout was a passenger in a motor vehicle traveling in a northerly direction on Walnut Street Extension in Agawam, Massachusetts. Compl. 4. Buckhout’sspouse, Keith Buckhout (“Keith”), was not only operating the car in which Plaintiff was riding, he was also the lawful owner of the automobile as well. Compl. 4. Eventually, Buckhout and Keith stopped for a red traffic light at the intersection of Walnut Street Extension and Springfield Street. Compl. { 5. After the traffic light turned green, Buckhout and Keith began to proceed northerly through the intersection. Compl. 6. At the same time, the vehicle of the Rivera plaintiff—Carmen Rivera—was stationed in the above-referenced intersection, attempting to turn left onto Springfield Street. See Compl. 7. as Buckhout and Keith proceed through the intersection, the automobile in which they were traveling was struck on the right, passenger side by the vehicle that Lisa Ketcher (“Ketcher”) was operating. Compl. 8. At the time of the collision, Ketcher was traveling in a westerly direction on Springfield Street, Compl. { 10, and the car that she was operating was owned by Thomas M. Keenan (“Keenan”), Compl. 9. Due to the immense force of the collision, the motor vehicle in which both Keith and Buckhout were traveling (1) was forced into the southbound lane of Walnut Street Extension, and (2) collided into Carmen Rivera’s automobile, which was in the process of turning onto Springfield Street from Walnut Street Extension. Compl. {| 12. As a result of the collision, Plaintiff suffered several physical injuries. Compl. {J 13 & 17. Almost three years after the above-described accident occurred, Rivera was initiated. Specifically, on July 1, 2015, Carmen Rivera filed an undifferentiated complaint against Ketcher in Hampden County Superior Court. On August 18, 2015, Carmen Rivera amended her complaint, and approximately five months thereafter, Ketcher filed a third-party complaint against Keith for contribution. On the other hand, the instant action was commenced on July 23, 2015. In particular, Buckhout filed a two-count complaint in Hampshire County Superior Court against Ketcher and Keenan, alleging common-law negligence, see Compl. {ff 14-17, and negligent entrustment of a motor vehicle, see Compl. {J 18-23, respectively. Now, Carmen Rivera seeks to fuse together Riveraand the instant action through her Motion to Consolidate. In Massachusetts, a consolidation of civil actions is governed by Rule 42 of the Massachusetts Rules of Civil Procedure. I. LEGAL STANDARD “Rule 42(a) authorizes consolidation of ‘actions involving a common question of law or fact,’ and such further procedural orders ‘as may tend to avoid unnecessary costs or delay.’” Trenz v. Family Dollar Stores of Mass., Inc., 73 Mass. App. Ct. 610, 613 (2009). Specifically, “[iJn considering whether to consolidate two or more cases, a trial court judge is required to conduct a two-part analysis.” Unifund CCR Partners v. Mendel, No. 06-WAD-05, 2007 WL 1098640, at *1 (Mass. App. Div. April 10, 2007). “As a threshold issue, a judge must determine whether the two proceedings involve a common party and common issues of fact or law.” Jd. (internal quotation marks omitted). “If the cases involve common parties and common issues of fact or law, then the judge must weigh the costs versus the benefits of consolidation, namely, the interests of judicial economy versus the concern for a fair trial.” Id.; see also City of Springfield v. Civil Serv. Comm'n, 403 Mass. 612, 615 n.3 (1988) (“Though a judge may order consolidation under Mass.R.Civ.P. 42(a), 365 Mass. 805 (1974), when there are common questions of law or fact, it is discretionary.”). “It is appropriate to consider, when weighing the costs and benefits of consolidation, the convenience or inconvenience to the parties, the judicial economy, the savings in time, effort or expense and ‘any confusion, delay or prejudice that might result from consolidation.”” Mendel, 2007 WL 1098640, at *1 (quoting Cruickshank v. Clean Seas Co., 402 F.Supp.2d 328, 341 (D.Mass.2005)); see also Chavoor v. Lewis, 383 Mass. 801, 806 n.5 (1981) (“As a general principle, we apply to our rules of civil procedure the construction given to the cognate Federal rules.”). “{W]hen sufficient prejudice is demonstrated by the party opposing consolidation, then ‘[cJonsiderations of convenience and economy must yield to a paramount concern for a fair andimpartial trial.” Mendel, 2007 WL 1098640, at *1 (alteration in original) (quoting Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2nd Cir.1990)). Il. ARGUMENT Plaintiff opposes Carmen Rivera’s Motion to Consolidate to the extent that (A) both actions involve different questions of law and fact, and (B) fusing the two cases will create substantial potential for confusion before a jury. A. Because the Instant Action and Rivera Involve Different Issues of Law and Fact, This Court Should Deny the Motion to Consolidate. The instant action contains different facts and law as opposed to Rivera. First, notwithstanding an allegation of common-law negligence in both cases, the factual issue of damages in each case is entirely different. Specifically, Buckhout has an injury that will require the testimony of medical experts, including but not limited to Charles A. Mick, MD. Buckhout understands Carmen Rivera’s injury may also involve medical testimony due to her substantial medical treatment. Moreover, the instant action involves an allegation of negligent entrustment of a motor vehicle against Keenan; Carmen Rivera alleges no such legal theory. To bolster, Keenan is not even a party in Rivera. B. Because Fusing the Two Cases Will Create Substantial Potential for Confusion, This Court Should Deny the Motion to Consolidate . Analogous to Nixon v. General Motors Corporation, No. CA001123C, 2000 WL 1512369, at *] (Mass. Super. Aug. 24, 2000), consolidation of the instant action and Rivera will create substantial potential for confusion before a jury. Specifically, Nixon addressed General Motors Corporation’s Rule 42(a) motion. 2000 WL 1512369, at *1. Although the two cases that General Motors sought to fuse arose out of the same, single motor vehicle accident, id., the court still denied the defendant’s Rule 42(a) motion, id. In so doing, the court reasoned that “two inappropriate results” could ensue from granting the motion to consolidate. Jd. With respect to the second inappropriate 4result, the court reasoned that “[t]he fusion of the two cases, despite the fact that they arise out of the same single vehicle accident, given the current plaintiff's professed different theories of liability, will _create substantial potential for confusion before a jury and for the presiding judge.” Jd. ! The court highlighted the potential for confusion by posing a series of hypothetical inquiries—“[w]hat evidence, from which expert witness, or which internal General Motors document, or other source, should the jury consider only on behalf of or against the plaintiff here, and what evidence may the jury consider on behalf of or against the plaintiffs in the original action?” Jd. Here, Nixon is controlling. Factually, the instant action and Rivera arise out of the same motor vehicle accident, involving consecutive impacts with different cars, which is analogous to the cases at issue in Nixon. Additionally, Buckhout asserts multiple, different theories of liability against the respective Defendants; in contrast, Carmen Rivera levies only one, undifferentiated theory of liability against a single defendant — Ketcher. This factor mirrors Nixon to the extent that the plaintiff there “professed different theories of liability.” Jd. In light of these analogous factors, the rationale of Nixon leads to the conclusion that the instant action and Rivera should not be fused together. Notwithstanding the fact that the instant action and Rivera arise from the same nucleus of operative facts, Plaintiff's different theories of liability against the two Defendants and the different medical injuries with expert testimony will require the jury to consider a large volume of evidence— including trial testimony, depositions, and medical and other documents. Further, Carmen Rivera’s case will involve different types of proof than Buckhout’s as to liability. Such a trial would require intellectual gymnastics of the kind that can create substantial potential for jury confusion. ' This Opposition relies on the second of the inappropriate results that the superior court identified — i.e. substantial potential for confusion — and not the first result — i.e. depriving a plaintiff of a fair opportunity to prepare and present his or her case and the theories that support it. Buckhout’s exclusive reliance on the former rationale does not undercut the force of her legal argument in Part IIIB. of this Opposition because, as the Supreme Judicial Court has recognized, “[c]onsideration of potential delay and confusion alone may warrant denying consolidation.” City of Springfield v, Civil Serv. Comm’n, 403 Mass. 612, 615 n.3 (1988) (emphasis added). 5rs Iv. CONCLUSION For the foregoing reasons, Plaintiff Christine Buckhout respectfully requests this Honorable Court to deny Defendants Lisa Ketcher and Thomas M. Keenan’s Motion to Consolidate. PLAINTIFF, CHRISTINE M. BUCKHOUT, Date: March 22, 2016 cGan, Esq. (BBO# 556755) BRODEUR-McGAN, P.C. 1380 Main Street, Suite 202 Springfield, MA 01103 (413) 735-1775; Fax: (413) 735-1772 lbm@brodeurmegan.com CERTIFICATE OF SERVICE I, Lisa Brodeur-McGan, do hereby certify that I made service of the foregoing document on this 22™ day of March, 2016, by first class mail, postage prepaid, to: Ronald E. Harding, Esq., and Allison K. Gurley, Esq., Weston Patrick, P.A., 84 State Street, 1% Floor, Boston, MA 02109. Lisa Bro cGan