Blake v. Nstar Elec. Corp.
| Decision Date | 20 September 2013 |
| Docket Number | CIVIL ACTION NO. 09-10955-DPW |
| Parties | SHELLEIGH L. BLAKE, and RICHARD W. BLAKE, Plaintiffs, v. NSTAR ELECTRIC CORPORATION, Defendant/Third Party Plaintiff JAMES A. KILEY CORPORATION, HUBBELL POWER SYSTEMS, INC., A.B. CHANCE, INC., TEREX CORPORATION, TEREX UTILITIES, INC., and TEREX-TELELECT, INC., Defendants, v. JCR CONSTRUCTION CO., INC., Third Party Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Attorney Richard Kendall initiated this demanding products liability action in 2009 on behalf of his clients against multiple defendants. Over a period of four years, Mr. Kendall, who has been challenged by a series of medical issues, proved unable to meet the demands of the litigation despite multiple scheduling accommodations provided by the court. He was unwilling or unable either to engage, or to transfer the case to, other counsel who would reliably be able to prosecute the matter.At this point, I confront a record in which Mr. Kendall has mounted on behalf of the plaintiffs a virtually non-existent opposition to defendants' motions for summary judgment. Having extended every reasonable accommodation - and more - to plaintiffs, I now must address the record before me. Doing so in a searching fashion designed to assure that the neglect of plaintiffs' counsel has not obscured some merit to plaintiffs' case, I conclude that summary judgment should be granted on this record to the several defendants.
Given the wholesale and sustained neglect of this case by Mr. Kendall, I conclude I should also refer the file to Massachusetts Bar Counsel for review to determine whether professional discipline is appropriate regarding counsel who manifestly did not provide competent, prompt, and diligent services to his client and consequently obstructed the orderly process of the adversary system. To be sure, I specifically inquired of the lead plaintiff, Mr. Blake, earlier this year - after Mr. Kendall's pattern of subcompetent, dilatory, and neglectful conduct of this proceeding had become well established - regarding his satisfaction with Mr. Kendall's services. I was informed by Mr. Blake that he wished to continue with Mr. Kendall. I am not, however, satisfied that the views of a vulnerable lay client should be determinative on a question of professional discipline. Rather, the course of this matterprovides a basis for review by the state's bar disciplinary apparatus to determine if action is necessary.1
On June 6, 2006, Richard Blake sustained serious injuries from two electrical explosions, also known as "arc flashes," that occurred while he was maintaining a power line. Blake and his coworker Timothy Dugan, both employees of JCR Construction Company, were tasked with installing three porcelain fuse "cutouts," devices designed to protect transformers from power surges, on an electrical pole in Natick. Dugan installed the "phase I" cutout while Blake installed the "phase III" cutout. The explosions occurred after the phase I and III installations were complete, while Blake was working on the "phase II" or "middle" cutout.
Nstar had contracted with JCR Construction to install the cutouts, which were designed and manufactured by Hubbell Power and its subsidiary A.B. Chance. To reach the cutouts, Blake rode in the bucket of an aerial lift attached to a truck, all of which were designed and manufactured, in various respects, by Terex-Telelect and James Kiley Corporation.
Plaintiffs brought this action on June 5, 2009, seeking to hold Nstar liable for negligent conduct in organizing the cutout-installation project, and to hold the remaining defendants liable for negligent design of their respective products. In addition to Richard Blake's direct claims for relief, his wife, Shelleigh Blake, is also a plaintiff asserting a derivative claim for loss of consortium.
Following the pattern of neglectful conduct of the litigation by plaintiffs' counsel, recited more fully in Section I.C. infra, as a result of which I repeatedly extended deadlines to accommodate plaintiffs, I scheduled without opposition by plaintiffs the filing of summary judgment motions for February 14, 2013. Plaintiff's neglected to oppose defendant's motions in a timely fashion and, after failing in an eleventh hour effort to obtain yet another continuance, made a belated submission following the summary judgment hearing on these motions.
More than a year after the case was filed, plaintiffs had still failed to submit initial disclosures and had not responded to certain initial discovery requests. I was required to enter an order on August 30, 2010 compelling the plaintiffs to provide their initial disclosures and discovery responses.
Plaintiffs moved in September 2010 to extend the time for discovery beyond the initially-set December 2010 deadline because Mr. Kendall had suffered a traumatic injury. At a hearing on December 13, 2010, I was informed that Mr. Kendall had fallen off his roof while cleaning gutters, sustained serious injuries, and had spent and would spend a significant amount of time in the hospital. Mr. Kendall informed me through telephone participation in a scheduling conference that a staph infection might cause additional complications. As a consequence, I made adjustments in the discovery schedule to accommodate Kendall's health condition. While defendants were permitted to pursue discovery from Mr. Blake's employer, JCR, I postponed setting a revised comprehensive schedule for the case until a status/scheduling conference set for April 14, 2011, in the expectation that Mr. Kendall's health issues would be resolved by that time or alternative arrangements would be made for the representation of plaintiffs. In addition, I allowed defendants to subpoena medical records relevant to plaintiffs' injuries,which had not been produced by the plaintiffs. Although defendants were thus able to obtain the relevant medical records, plaintiffs apparently never disclosed a list of individuals with discoverable information or a formal computation of damages.
At the April 14, 2011 conference, I extended the discovery period to December 2011. I again saw this as a reasonable accommodation in light of Mr. Kendall's health condition. Thereafter, however, a pattern emerged in which plaintiffs failed to make use of the additional time extended to pursue the litigation and then made last-minute requests for reprieve by further extension of the relevant deadlines. On December 8, 2011, I extended the period for discovery again. And I once again addressed the issue of Kendall's health on May 21, 2012, extending the time for discovery and dispositive motions. However, I allowed the last extension only on the representation that Mark C. Thomas, Kendall's putative co-counsel, would file a formal appearance in the case. Mr. Thomas thereupon filed an appearance as promised.
One might have expected that, having received one last reprieve as to scheduling and armed with the assistance of healthy co-counsel, Mr. Kendall could have arranged to get the case back on track. But it was not to be. Plaintiffs failed to make expert disclosures by the most-recently-extended deadline of August 20, 2012. The defendants thereafter filed an initialround of motions for summary judgment, primarily arguing that plaintiffs could not prevail without expert testimony.
On September 19, 2012, co-counsel Mr. Thomas filed a notice of withdrawal without leave of court in derogation of Local Rule 83.5.2, while the defendants' dispositive motions were pending in the case. This effort to withdraw was undertaken despite my indication at the May 21 hearing that, due to concerns about Mr. Kendall's health and ability to prosecute the case effectively on his own, Mr. Thomas' presence in the case was critical. At a hearing on September 28, 2012, at which neither Mr. Kendall nor Mr. Thomas appeared, I vacated Mr. Thomas' purported withdrawal. Thereafter, I issued a memorandum memorializing these events and ordered both of plaintiffs' counsel to appear at a summary judgment hearing set for November 9, 2012. Blake v. Nstar Elec. Corp., No. 09-10955, Order (D. Mass. Oct. 3, 2012).
On October 24, 2012, Plaintiffs requested an extension of time to file an expert report, and at last filed such a report on November 8, 2012, the day of the scheduled summary judgment hearing. In keeping with my general policy of seeking to resolve contested cases on the merits after full development of the parties' contentions, I denied defendants' motions for summary judgment without prejudice and reset a schedule for dispositive motions.
Meanwhile, on January 24, 2013, I met with plaintiff Richard Blake himself, along with Mr. Kendall and Mr. Thomas. After the travel of the case was reviewed in our discussion, Mr. Blake assured me that he wished to proceed with Mr. Kendall as his attorney on the new schedule. On that representation and the representation that a new public service job for Mr. Thomas required him to withdraw, I permitted Mr. Thomas to withdraw from the case, leaving Mr. Kendall again the only plaintiffs' counsel of record in the case.
On February 14, 2013, defendants timely filed the summary judgment motions before me now. Dkt. Nos. 127, 129, 134, 140. Plaintiffs, however, failed to oppose these motions by the March 1, 2013 deadline I had extended them. On April 16, 2013, the day before the scheduled hearing on the motions for summary judgment, Mr. Kendall, on behalf of plaintiffs, filed a motion for extension of time to file oppositions to the summary judgment motions, and also moved to continue the scheduled hearing.
I declined to order a continuance and the hearing went forward as scheduled on April 17. I made clear that I had been as accommodating as possible in scheduling matters, but that enough was enough. I also informed attorney Mr. Kendall that I would be...
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