Atlas Tack Corp. v. Donabed, 97-P-1878

CourtAppeals Court of Massachusetts
Writing for the CourtSPINA
Citation712 N.E.2d 617,47 Mass.App.Ct. 221
Decision Date02 July 1999
Docket NumberNo. 97-P-1878,97-P-1878
PartiesATLAS TACK CORPORATION v. Ralph DONABED & others. 1

Page 617

712 N.E.2d 617
47 Mass.App.Ct. 221

Ralph DONABED & others. 1
No. 97-P-1878.
Appeals Court of Massachusetts,
Argued Feb. 23, 1999.
Decided July 2, 1999.

Page 618

Martin L. Legg for the plaintiff.

Erik Lund, Boston, for Salvatore F. DiMasi.

John T. Lamond, Reading, for Stephen P. Karll.


[47 Mass.App.Ct. 222] SPINA, J.

The plaintiff sought to hold the defendants, Salvatore DiMasi and Stephen Karll, vicariously liable for the alleged malpractice of another attorney, Ralph Donabed, in negotiating a settlement agreement on its behalf. This case was previously before us on an issue unrelated to this appeal, and we remanded for further proceedings. Atlas Tack Corp. v. DiMasi, 37 Mass.App.Ct. 66, 637 N.E.2d 230 (1994). After remand, a Superior Court judge ordered summary judgment for the defendants on the basis of the plaintiff's

Page 619

failure to establish causation. The plaintiff appeals from the adverse order for summary judgment, and the allowance of a motion to strike a portion of its answer to the defendants' expert witness interrogatory, a sanction for the plaintiff's noncompliance with a discovery order. We affirm.

In July, 1984, the plaintiff entered into an agreement with the Massachusetts Department of Environmental Quality Engineering (DEQE) to do environmental cleanup work inside its plant in Fairhaven as well as at a lagoon located near the plant. In June, 1985, the plaintiff hired the engineering firm of Goldberg-Zoino & Associates, Inc. (GZA), to implement and supervise the cleanup. GZA's subcontractors exceeded their budgeted costs for the cleanup, and demanded payment of the extra costs. When the plaintiff refused to pay the added costs, GZA and the subcontractors commenced an action for payment. The plaintiff retained Donabed in 1986 to defend that lawsuit, and to assert a counterclaim alleging that GZA negligently underestimated the costs of the cleanup for the Fairhaven site. In 1989, Donabed negotiated a settlement with GZA and the subcontractors, the terms of which required the parties to file mutual releases and make certain payments.

Dissatisfied, the plaintiff brought the present action in Superior Court alleging Donabed's negligence in handling the settlement of its claims. The plaintiff alleges that it gave Donabed authority to settle only claims relating to the interior cleanup of the plant, and had not authorized Donabed to negotiate any claims relating to the exterior cleanup of the lagoon. The plaintiff further alleges that Donabed's negligence caused it to lose "the opportunity to obtain damages from GZA on claims ... [it] never authorized Donabed to release."

Motion to strike. On October 14, 1994, the defendants served [47 Mass.App.Ct. 223] an expert witness interrogatory 2 conformably with Mass.R.Civ.P. 26(b)(4)(A)(i), 365 Mass. 772 (1974), upon the plaintiff. As of November, 1995, the plaintiff had failed to respond, and the deadline for all discovery matters was designated as December 31, 1995. Failing in their efforts, as required by Superior Court Rule 9C (1989), to resolve the matter, the defendants moved to compel the plaintiff to answer the interrogatory. A Superior Court judge ordered the plaintiff to "produce full [and] complete answers to expert interrogatories not later than Dec. 8, 1995." The parties agreed to extend the time for compliance until December 29, 1995. The plaintiff purported to answer the expert interrogatory on December 29, 1995, identifying an attorney and an engineer as its experts. On January 26, 1996, the defendants moved, pursuant to Mass.R.Civ.P. 37(b)(2)(B) & (C), 365 Mass. 797 (1974), to strike the plaintiff's expert witnesses' testimony at trial, on the ground that the plaintiff's answer to the expert interrogatory was so inadequate as to prevent them from adequately preparing a defense. After hearing, the same motion judge allowed the motion to strike as to the engineering expert, but denied the motion as to the legal expert. The stricken portion of the answer identified the engineering expert and further provided that:

"[the witness] is expected to testify concerning the consequences of the negligence of [GZA], including the price differential of the cost of removal of the waste as special waste versus the cost of removal of the waste as hazardous waste, approximately $500,000.00 and related matters. [The witness] is also expected to testify as to the negligence of GZA, the applicable standards for engineering work, including engineering work in regard to the [47 Mass.App.Ct. 224] implementation of a consent decree and work orders flowing from a consent decree, and the supervision thereof, and the shortcomings of GZA with respect to the same."

Page 620

The plaintiff claims that the motion judge abused his discretion by striking the summary of its engineering expert's testimony.

A judge has wide latitude to "make such orders in regard to the failure [to comply with a discovery order] as are just." Mass.R.Civ.P. 37(b)(2). See Smith & Zobel, Rules Practice §§ 37.8, 37.11 (1975 & Supp.1999). Wilful noncompliance was eliminated in 1984 as a prerequisite to the imposition of sanctions " 'to increase compliance with discovery orders, by making it easier for parties to achieve, and judges to award, sanctions for the failure to comply with a discovery order.' Reporters' Notes to Mass.R.Civ.P. 37, Mass. Ann. Laws, Rules of Civil Procedure at 18 (Supp.1988)." Gos v. Brownstein, 403 Mass. 252, 256, 526 N.E.2d 1267 (1988). Findings of fact and conclusions of law are unnecessary for our review of the allowance of a motion pursuant to Mass.R.Civ.P. 37(b). Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 431, 494 N.E.2d 402 (1986).

The plaintiff argues that by allowing the motion to strike, the judge eliminated its ability to present essential proof necessary to prevail on its claims, and, thus, imposed the harsh result of dismissal. We disagree. While we recognize that the plaintiff's lack of expert testimony resulted in a dismissal of its claims, this result was not compelled by the judge's sanction. The plaintiff had recourse after the judge allowed the motion to strike. At a minimum, the plaintiff could have filed a motion to supplement its answers with the necessary information "at any time" prior to trial. Mass.R.Civ.P. 26(e)(3), 365 Mass. 772 (1974). The plaintiff on appeal cannot complain of the harshness of a result which it could have avoided.

The claims against the defendants involved complex engineering standards and factual allegations of negligent conduct over the course of several years. In this context, the plaintiff's answer to the interrogatory, provided unreasonably, hence unacceptably, incomplete and vague information from which the defendants hardly could be expected to prepare a defense. "Mutual knowledge of all the relevant...

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