Ayash v. Dana-Farber Cancer Institute, SJC-09236 (MA 2/9/2005), SJC-09236
| Citation | 443 Mass. 367 |
| Decision Date | 09 February 2005 |
| Docket Number | SJC-09236 |
| Parties | LOIS J. AYASH vs . DANA-FARBER CANCER INSTITUTE & others. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Privacy. Doctor, Employment. Hospital, Peer review, Appointment to staff. Contract, Implied covenant of good faith and fair dealing, Physician, Employment, Interference with contractual relations. Employment, Retaliation. Charity. Corporation, Charitable corporation, Non-profit corporation. Damages, Employment contract, Libel. Libel and Slander. Contempt.
Civil action commenced in the Superior Court Department on February 1, 1996.
After certain discovery matters were heard by Peter M. Lauriat, J., the case was tried before Catherine A. White, J.
The Supreme Judicial Court granted an application for direct appellate review.
Kenneth W. Salinger (Steven L. Schreckinger with him) for Dana-Farber Cancer Institute & another.
Joan A. Lukey (Gabrielle R. Wolohojian with her) for the plaintiff.
Jonathan M. Albano (George Freeman, of New York, & Martin F. Murphy with him) for Globe Newspaper Company, Inc., & another.
The following submitted briefs for amici curiae:
Carl Valvo for Professional Liability Foundation, Ltd., & others.
Steven S. Locke for Massachusetts Commission Against Discrimination.
Robert S. Mantell, Jonathan J. Margolis, & James E. Fitzgerald for Massachusetts Employment Lawyers Assocation.
Laura R. Handman & Jeffrey L. Fisher, of the District of Columbia, for ABC, Inc., & others.
Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ.
The plaintiff, Dr. Lois J. Ayash, commenced this action in the Superior Court against the defendants, the Dana-Farber Cancer Institute (Dana-Farber or the hospital); Dr. David M. Livingston; Globe Newspaper Company, Inc., publisher of the Boston Globe (Globe); and Globe reporter Richard A. Knox, seeking damages in connection with a series of events that occurred in the aftermath of the discovery that two patients enrolled in an experimental breast cancer treatment study at Dana-Farber had mistakenly been administered a four-fold overdose of a highly toxic chemotherapy drug. One of the patients, Globe health columnist Betsy A. Lehman, died as a result of the overdose. In her complaint, the plaintiff accused the Globe and Knox (together, Globe defendants) of publishing a series of scathing and inaccurate articles about the overdoses and an alleged coverup by Dana-Farber that erroneously attributed culpability to the plaintiff, thereby destroying her reputation and her well-being. The plaintiff's complaint also accused Dana-Farber and Livingston (who was physician-in-chief at Dana-Farber at the time of the overdoses and their discovery) of inappropriately focusing public attention on her, by issuing press releases containing confidential peer review information and by secretly providing to Knox other confidential peer review information. This was done, the plaintiff alleges, in order to deflect attention from widespread deficiencies in the hospital that led to the overdoses and in order to protect other physicians at the hospital. The plaintiff's amended complaint, as far as now relevant, states claims against (1) Dana-Farber for invasion of privacy, breach of the implied covenant of good faith and fair dealing, and unlawful retaliation in violation of G. L. c. 151B, § 4 (4)2; (2) Livingston for intentional interference with contractual relations; (3) the Globe defendants for libel and defamation3; and (4) Knox for intentional interference with contractual relations and for intentional or negligent infliction of emotional distress.
During the discovery stage of the litigation, the plaintiff sought the identities of sources consulted by Knox before writing articles, subsequently published in the Globe, that formed, at least in part, the basis of the plaintiff's lawsuit. After the Globe defendants' steadfast refusal to provide information that would lead to the identities of Knox's confidential sources, despite a court order to disclose their identities, a judgment of civil contempt was entered in the Superior Court against the Globe defendants. The Appeals Court vacated the order to disclose and the contempt order, concluding that the defendants had made "some showing" that disclosure of Knox's confidential sources presented a danger to the free flow of information that was more than theoretical or speculative. See Ayash v. Dana-Farber Cancer Inst., 46 Mass. App. Ct. 384 (1999). On remand, the judge allowed the plaintiff's renewed motion to compel the Globe defendants to disclose the identities of their confidential sources. When the Globe defendants continued to refuse, the judge ultimately entered, as a sanction pursuant to Mass. R. Civ. P. 37 (b) (2), as amended, 390 Mass. 1208 (1984), pretrial default judgments of liability in favor of the plaintiff on her claims against the Globe defendants.4
After five weeks of trial (presided over by a different judge than the judge who had dealt with discovery), a jury in the Superior Court found Dana-Farber liable for (1) violation of the plaintiff's statutory right to privacy under G. L. c. 214, § 1B; (2) breach of the covenant of good faith and fair dealing implied in its employment contract with the plaintiff; and (3) unlawful retaliation in violation of G. L. c. 151B, § 4. The jury also returned a verdict in favor of the plaintiff on her claim that Livingston intentionally had interfered with her employment relationship with Dana-Farber. The jury awarded damages against Dana-Farber in the amount of $180,000 for lost compensation and injury to business reputation, $1,080,000 for emotional distress, and $5,000 in punitive damages5; the jury also awarded damages against Livingston in the amount of $120,000 for lost compensation and injury to business reputation, and $720,000 for emotional distress. For the plaintiff's defaulted claims against the Globe defendants, the jury awarded her the sum of $1,680,000 against the Globe (reflecting $240,000 in economic damages and $1,440,000 in emotional distress damages) and $420,000 against Knox (reflecting $60,000 in economic damages and $360,000 in emotional distress damages).
The judge heard motions filed by Dana-Farber and Livingston for the entry of judgment notwithstanding the verdicts; a motion filed by Dana-Farber requesting that the charitable cap, G. L. c. 231, § 85K, be applied to the judgment against it; a motion filed by the Globe defendants challenging the default judgments; and motions for a new trial (or, alternatively, for remittitur) based on excessive damages submitted by all of the defendants. The judge upheld the verdicts against Dana-Farber and Livingston, but agreed that the charitable cap applied to the damages awarded against Dana-Farber. The judge declined to revisit the default judgment (which, as noted, had been entered by another judge). Finally, the judge concluded that damages awarded by the jury, although high, were not excessive and denied all of the defendants' motions for remittitur. An amended judgment was entered allowing the plaintiff to recover the sum of $20,000 (plus costs and interest) from Dana-Farber.6
The case is before us on cross appeals. The plaintiff appeals the judge's application of the charitable cap. Dana-Farber appeals the denial of its motion for judgment notwithstanding the verdicts on the retaliation, privacy and implied contract claims. Livingston appeals the denial of his motion for judgment notwithstanding the verdict on the intentional interference claim. The Globe defendants appeal the imposition of the sanction of default judgment against them. All of the defendants appeal the denial of their motions for remittitur, or for a new trial, on the issue of excessive damages. We granted the parties' applications for direct appellate review.
For reasons that follow, we vacate the judgments against Dana-Farber for invasion of privacy and for breach of the implied covenant of good faith and fair dealing, and against Livingston for interference with employment relations, and direct the entry of judgments for Dana-Farber and Livingston on those claims. We affirm the verdict against Dana-Farber for the G. L. c. 151B unlawful retaliation claim and conclude that the charitable cap set forth in G. L. c. 231, § 85K, does not apply to damage awards for unlawful retaliation under G. L. c. 151B. We affirm the default judgments, and the corresponding damage awards, against the Globe defendants. Vacating the judgments against Dana-Farber for invasion of privacy and breach of the implied covenant creates a defect in the damages awarded against Dana-Farber which necessitates a retrial on damages. Accordingly, we remand the case to the Superior court for a new trial on the damages to be awarded against Dana-Farber.
1. We begin with an overview of the facts in the light most favorable to the plaintiff. See Situation Mgm't Systems, Inc. v. Malouf, Inc., 430 Mass. 875, 876 (2000); Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438 (1992). Additional facts will be discussed as they relate to the parties' claims of error.
a. The overdoses and the immediate aftermath of their discovery. In November, 1994, a research fellow at Dana-Farber, Dr. James Foran, accidentally ordered four-fold overdoses of cyclophosphamide, a powerful chemotherapy drug with well known heart toxicity, for two patients in an experimental protocol7 for breast cancer patients (protocol 94-060) administered under the auspices of Dana-Farber's Solid Tumor Autologous Marrow Program (STAMP).8 The plaintiff was protocol chair and principal investigator for protocol 94-060. The overdoses were separately administered to two patients, Betsy Lehman and Maureen Bateman, over the course of four days beginning on November 14 and November 16, respectively. The attending physician on duty at the time the orders were written, and the overdose administered to Lehman, was Dr. Gary N. Schwartz. The...
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