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COMMONWEALTH OF MASSACHUSETTS
SUBEREN G .
Hampden, ss. ByYOR Quin Superior Court Department
LE RCVATOL the Trial Court
AUG - Civil Action No.: 15-679
5 1 on
FRANCIS J. DUDA, M.D., CLERK Op a EFENDANT’S OPPOSITION TO
Plaintiff ‘87s PLAINTIFF’S MOTION TO STRIKE
) DEFENDANT’S “APPENDIX A:
Vv. SUMMARY OF TRIAL EVIDENCE,”
. )
BAYSTATE MEDICAL PRACTICES, INC. ) ATTACHED TO DEFENDANT’S MOTION
f/k/a BAYSTATE MEDICAL EDUCATION ) FOR JUDGMENT NOTWITHSTANDING
AND RESEARCH FOUNDATION, INC., ) THE VERDICT OR FOR A NEW TRIAL
Defendant )
- Defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and
Research Foundation, Inc. (“Defendant”), opposes Plaintiffs Motion to Strike Defendant’s
“Appendix A: Summary of Trial Evidence,” Attached to Defendant’s Motion for Judgment
Notwithstanding the Verdict or for a New Trial (“Plaintiff's Motion”). Plaintiff, Francis J. Duda,
MLD. (“Plaintiff”), seeks, pursuant to Mass. R. Civ. P. 12(f), to strike Appendix A: Summary of
Trial Evidence (“Appendix A”), asserting that the summary of the trial evidence “is immaterial
as it is neither evidence nor an official record of evidence and, thus, cannot assist the Court in its
determination.” (Plaintiff's Memorandum of Law, In Support of Plaintiff's Motion to Strike
(‘Plaintiff's Memo”), p. 1). Plaintiffs Motion is without basis and should be denied.
Mass. Rule of Civil Procedure 12(f) allows the Court to strike from a pleading any
“insufficient defense, or any redundant, immaterial, impertinent or scandalous matter.” Mass. R.
Civ. P. 12(). Courts have disfavored motions to strike matters from pleadings. Boreri v. Fiat
S.P.A., 763 F. 2d 17, 23 (1st Cir. 1985) (analyzing Fed. R. Civ. P. 12(f) motions). See 5C Wright
& Miller, Federal Practice and Procedure: Civil § 1382 (3rd ed.) (Doubt about whether the
challenged material is “immaterial” should be resolved in favor of the non-moving party).
CABy its terms, Rule 12(f) applies only to “immaterial, impertinent, or scandalous matter”
that is contained in a pleading. The word “pleading” encompasses a complaint, answer, reply to
a counterclaim, answer to a cross-claim, third party complaint, and third party answer. Mass. R.
Civ. P. 7(a). Appendix A, which is attached to Defendant’s Motion for Judgment
Notwithstanding the Verdict or for a New Trial, is not a pleading, and therefore Rule 12(f) is not
applicable. See Terespolsky v. Law Offices of Stephanie K. Meilman, P.C., 17 Mass. L. Rptr. 37
(2004) (defendant’s Rule 12(f) motion to strike denied in part because plaintiff's untimely filed
Opposition Materials to Defendant’s Motion to Dismiss are not pleadings).
Even if Rule 12(f) applied to Appendix A, Plaintiff's assertion that Appendix A is
“immaterial” is unsupported. Appendix A is a summary of the trial evidence and can be used by
the Court, as it sees fit, in ruling on Defendant’s Motion for Judgement Not Withstanding the
Verdict or for a New Trial. The evidence presented at trial is, of course, at the heart of the
court’s evaluation of both a motion for a new trial and a motion for judgment notwithstanding
the verdict. With regard to a motion for a new trial, contrary to Plaintiff's assertion (Plaintiff's
Memo, p. 2), the statement of law in Appendix A that “the Court must consider all of the
evidence, assessing its probative value” in considering a motion for new trial is correct.
Appendix A, p. 1, citing to Roberton v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520 (1989).
“When ruling on a motion for a new trial a judge is obliged to determine credibility and weigh
conflicting evidence, and must consider the probative force of all the evidence.” Waite v. Goal
Systems Intern., Inc., 55 Mass. App. Ct. 700, 706 (2002) (citing Smith & Zobel, Rules Practice §
59.3 (1977 & Supp. 2002) and Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 59-61
(1948)). See Clapp v. Haynes, 11 Mass. App. Ct. 895, 896 (1980) (noting that “[b]ecause the
allowance of a motion on this ground is intrinsically connected with the trial judge’s assessmentof the witnesses and their credibility, an abuse of discretion will ‘seldom be found,’ and the
occasions where an appellate court in this State has set aside the judge’s conclusion that a new
trial is required are ‘exceedingly rare”) (quoting Hartman at 61).! Plaintiff's assertion that this
is not how a court must evaluate a motion for a new trial is not supported by the case cited by
Plaintiff, Jamgochian v. Dierker, 425 Mass. 565, 571 (1997), or, to Defendant’s knowledge, by
any other authority. In fact, the quote in Plaintiff's Memo, p. 2, from Jamgochian (“[t]he fact
that the jury could have found for the [defendants] does not make their verdicts against the
weight of the evidence or inconsistent with substantial justice”) is not inconsistent with Waite or
with Robertson, 404 Mass. at 520 (in ruling on motion for new trial, “the judge must necessarily
consider the probative force of the evidence”).
On the other hand, in considering a motion for judgment notwithstanding the verdict, the
judge must disregard evidence favorable to the defendant, except where the evidence is the
plaintiffs own testimony to which he is bound. See Ravosa v. Zais, 40 Mass. App. Ct. 47, 51
(1996). Further, where, as in the case relied upon by Plaintiff and in this case, an employer ina
discrimination case offers evidence of a legitimate nondiscriminatory reason for the employment
decision, judgment notwithstanding the verdict is mandated if the plaintiff fails to offer sufficient
evidence that the given reason was not the real reason. See Zaniboni v. Massachusetts Trial
Court, 81 Mass. App. Ct. 216, 221-222 (2012) (reversing denial of judgment notwithstanding the
verdict where plaintiff failed to offer sufficient evidence to rebut employer’s legitimate
nondiscriminatory reason for employment decision).
Plaintiff also asserts that the summary in Appendix A is “not an accurate recitation of the
evidence in this case” (Plaintiff's Memo, p. 2), but Plaintiff fails to point to any inaccuracy in the
1 In Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 519, 520 (1989), the Supreme Judicial Court quotes
Hartman.
3summary. In addition, Plaintiff asserts that the summary does not indicate who testified to the
asserted statements (Plaintiff's Memo, p. 2). Many of the statements contained in the summary
of the evidence do in fact identify the witness or witnesses who testified at trial to those
particular statements. Nonetheless, in order to assist the Court and to clarify for Plaintiff,
attached to this opposition is a marked up copy referencing the source for each statement in
Appendix A.
For all the foregoing reasons, Plaintiff's Motion to Strike Defendant’s “Appendix A:
Summary of Trial Evidence,” Attached to Defendant’s Motion for Judgment Notwithstanding the
Verdict or for a New Trial, should be denied.
Dated: July 31, 2018 Defendant
Baystate Medical Practices, Inc.,
f/k/a Baystate Medical Education
and Research Foundation, Inc.
By Its Attorney:
Mary J. C2nedy: BBO a 552345
Jennifer K. Cannon; BBO No. 664431
Bulkley, Richardson and Gelinas, LLP
1500 Main Street — Suite 2700
Springfield, MA 01115
Tel: (413) 272-6242
Fax: (413) 272-6803
mkennedy@bulkley.com
jcannon@bulkley.com
Certificate of Service
I, Mary J. Kennedy, attorney for Baystate Medical Practices, Inc., f/k/a Baystate Medical
Education and Research Foundation, Inc., in this above matter, hereby certify that a true copy of
the above document was served upon the attorney of record for the plaintiff by hand on July 31,
2018.
Mary J. redy
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yoamp raise shud poo TMA COMMONWEALTH OF MASSACHUSETTS SUBEREN G . Hampden, ss. ByYOR Quin Superior Court Department LE RCVATOL the Trial Court AUG - Civil Action No.: 15-679 5 1 on FRANCIS J. DUDA, M.D., CLERK Op a EFENDANT’S OPPOSITION TO Plaintiff ‘87s PLAINTIFF’S MOTION TO STRIKE ) DEFENDANT’S “APPENDIX A: Vv. SUMMARY OF TRIAL EVIDENCE,” . ) BAYSTATE MEDICAL PRACTICES, INC. ) ATTACHED TO DEFENDANT’S MOTION f/k/a BAYSTATE MEDICAL EDUCATION ) FOR JUDGMENT NOTWITHSTANDING AND RESEARCH FOUNDATION, INC., ) THE VERDICT OR FOR A NEW TRIAL Defendant ) - Defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc. (“Defendant”), opposes Plaintiffs Motion to Strike Defendant’s “Appendix A: Summary of Trial Evidence,” Attached to Defendant’s Motion for Judgment Notwithstanding the Verdict or for a New Trial (“Plaintiff's Motion”). Plaintiff, Francis J. Duda, MLD. (“Plaintiff”), seeks, pursuant to Mass. R. Civ. P. 12(f), to strike Appendix A: Summary of Trial Evidence (“Appendix A”), asserting that the summary of the trial evidence “is immaterial as it is neither evidence nor an official record of evidence and, thus, cannot assist the Court in its determination.” (Plaintiff's Memorandum of Law, In Support of Plaintiff's Motion to Strike (‘Plaintiff's Memo”), p. 1). Plaintiffs Motion is without basis and should be denied. Mass. Rule of Civil Procedure 12(f) allows the Court to strike from a pleading any “insufficient defense, or any redundant, immaterial, impertinent or scandalous matter.” Mass. R. Civ. P. 12(). Courts have disfavored motions to strike matters from pleadings. Boreri v. Fiat S.P.A., 763 F. 2d 17, 23 (1st Cir. 1985) (analyzing Fed. R. Civ. P. 12(f) motions). See 5C Wright & Miller, Federal Practice and Procedure: Civil § 1382 (3rd ed.) (Doubt about whether the challenged material is “immaterial” should be resolved in favor of the non-moving party). CABy its terms, Rule 12(f) applies only to “immaterial, impertinent, or scandalous matter” that is contained in a pleading. The word “pleading” encompasses a complaint, answer, reply to a counterclaim, answer to a cross-claim, third party complaint, and third party answer. Mass. R. Civ. P. 7(a). Appendix A, which is attached to Defendant’s Motion for Judgment Notwithstanding the Verdict or for a New Trial, is not a pleading, and therefore Rule 12(f) is not applicable. See Terespolsky v. Law Offices of Stephanie K. Meilman, P.C., 17 Mass. L. Rptr. 37 (2004) (defendant’s Rule 12(f) motion to strike denied in part because plaintiff's untimely filed Opposition Materials to Defendant’s Motion to Dismiss are not pleadings). Even if Rule 12(f) applied to Appendix A, Plaintiff's assertion that Appendix A is “immaterial” is unsupported. Appendix A is a summary of the trial evidence and can be used by the Court, as it sees fit, in ruling on Defendant’s Motion for Judgement Not Withstanding the Verdict or for a New Trial. The evidence presented at trial is, of course, at the heart of the court’s evaluation of both a motion for a new trial and a motion for judgment notwithstanding the verdict. With regard to a motion for a new trial, contrary to Plaintiff's assertion (Plaintiff's Memo, p. 2), the statement of law in Appendix A that “the Court must consider all of the evidence, assessing its probative value” in considering a motion for new trial is correct. Appendix A, p. 1, citing to Roberton v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520 (1989). “When ruling on a motion for a new trial a judge is obliged to determine credibility and weigh conflicting evidence, and must consider the probative force of all the evidence.” Waite v. Goal Systems Intern., Inc., 55 Mass. App. Ct. 700, 706 (2002) (citing Smith & Zobel, Rules Practice § 59.3 (1977 & Supp. 2002) and Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 59-61 (1948)). See Clapp v. Haynes, 11 Mass. App. Ct. 895, 896 (1980) (noting that “[b]ecause the allowance of a motion on this ground is intrinsically connected with the trial judge’s assessmentof the witnesses and their credibility, an abuse of discretion will ‘seldom be found,’ and the occasions where an appellate court in this State has set aside the judge’s conclusion that a new trial is required are ‘exceedingly rare”) (quoting Hartman at 61).! Plaintiff's assertion that this is not how a court must evaluate a motion for a new trial is not supported by the case cited by Plaintiff, Jamgochian v. Dierker, 425 Mass. 565, 571 (1997), or, to Defendant’s knowledge, by any other authority. In fact, the quote in Plaintiff's Memo, p. 2, from Jamgochian (“[t]he fact that the jury could have found for the [defendants] does not make their verdicts against the weight of the evidence or inconsistent with substantial justice”) is not inconsistent with Waite or with Robertson, 404 Mass. at 520 (in ruling on motion for new trial, “the judge must necessarily consider the probative force of the evidence”). On the other hand, in considering a motion for judgment notwithstanding the verdict, the judge must disregard evidence favorable to the defendant, except where the evidence is the plaintiffs own testimony to which he is bound. See Ravosa v. Zais, 40 Mass. App. Ct. 47, 51 (1996). Further, where, as in the case relied upon by Plaintiff and in this case, an employer ina discrimination case offers evidence of a legitimate nondiscriminatory reason for the employment decision, judgment notwithstanding the verdict is mandated if the plaintiff fails to offer sufficient evidence that the given reason was not the real reason. See Zaniboni v. Massachusetts Trial Court, 81 Mass. App. Ct. 216, 221-222 (2012) (reversing denial of judgment notwithstanding the verdict where plaintiff failed to offer sufficient evidence to rebut employer’s legitimate nondiscriminatory reason for employment decision). Plaintiff also asserts that the summary in Appendix A is “not an accurate recitation of the evidence in this case” (Plaintiff's Memo, p. 2), but Plaintiff fails to point to any inaccuracy in the 1 In Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 519, 520 (1989), the Supreme Judicial Court quotes Hartman. 3summary. In addition, Plaintiff asserts that the summary does not indicate who testified to the asserted statements (Plaintiff's Memo, p. 2). Many of the statements contained in the summary of the evidence do in fact identify the witness or witnesses who testified at trial to those particular statements. Nonetheless, in order to assist the Court and to clarify for Plaintiff, attached to this opposition is a marked up copy referencing the source for each statement in Appendix A. For all the foregoing reasons, Plaintiff's Motion to Strike Defendant’s “Appendix A: Summary of Trial Evidence,” Attached to Defendant’s Motion for Judgment Notwithstanding the Verdict or for a New Trial, should be denied. Dated: July 31, 2018 Defendant Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc. By Its Attorney: Mary J. C2nedy: BBO a 552345 Jennifer K. Cannon; BBO No. 664431 Bulkley, Richardson and Gelinas, LLP 1500 Main Street — Suite 2700 Springfield, MA 01115 Tel: (413) 272-6242 Fax: (413) 272-6803 mkennedy@bulkley.com jcannon@bulkley.com Certificate of Service I, Mary J. Kennedy, attorney for Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc., in this above matter, hereby certify that a true copy of the above document was served upon the attorney of record for the plaintiff by hand on July 31, 2018. Mary J. redy