Gray v. Stillman White Co., Inc., 84-466-A

• Decision Date: 19 March 1987
• Docket Number: No. 84-466-A,84-466-A
• Citation: 522 A.2d 737
• Court: Rhode Island Supreme Court
• Parties: John GRAY et al. v. STILLMAN WHITE CO., INC., et al. ppeal.

Page 737

522 A.2d 737

John GRAY et al. v. STILLMAN WHITE CO., INC., et al.

No. 84-466-Appeal.

Supreme Court of Rhode Island.

March 19, 1987.

John Gray, pro se.

Gerard M. DeCelles (Abedon, Michaelson, Stanzlerf & Biener), Robert W. Lovegreen (Gidley, Lovegreen & Sarli), J. Robert Weisberger (Gunning, LaFazia & Gnys), Providence, for defendants.

OPINION

SHEA, Justice.

This appeal comes before us following the denial of the plaintiffs' motion heard in the Superior Court to vacate judgment pursuant to Rule 60(b)(2) of the Superior Court Rules of Civil Procedure. We affirm.

The relevant facts are not in dispute. The plaintiffs John and Janice Gray, individually and on behalf of their minor son, Justin, filed a complaint in Providence County Superior Court on November 29, 1978, against the defendant Stillman White Co., Inc. (Stillman). The plaintiffs alleged that during the course of John Gray's employment with Stillman, he developed lead poisoning, the effects of which were transmitted to his son, causing Justin to suffer severe physical, mental, psychological, and neurological injuries. The plaintiffs alleged that the direct and proximate cause of their son's injuries was Stillman's negligence through, inter alia, its failure properly to inspect, test, or package materials used in its business; its failure to maintain reasonably safe premises; and its failure to warn its employees of dangerous conditions at work.

The record reveals that John Gray was employed by Stillman for four years as an assistant melter, a job that required him to place metal ingots into a furnace to be melted. The job exposed John Gray to a number of lead-based or lead-coated metal products. It appears to be undisputed that John Gray developed lead poisoning for which he was treated in 1977 and 1978. As a result, he was unable to work and through at least March 1981 was receiving workers' compensation benefits.

The plaintiffs amended their complaint twice, adding defendant Harry Butter and Co. (Butter), a supplier of Stillman's, and including counts of negligence, breach of warranty, and products liability against Butter.

Discovery in this case was prolonged and punctuated by numerous motions to compel and motions to dismiss for failure to comply. In response to Stillman's request for admissions, plaintiffs conceded on September 23, 1982, that, as of that date, they were unable to produce any medical reports from any physician who, having treated Justin Gray or reviewed his medical records, would express an opinion, based on reasonable medical certainty, that a causal relationship existed between Justin's health problems and his father's occupational disability. The plaintiffs added to this admission, however, that

"[we] are actively researching this matter through an expert and are in possession of materials indicating that there may be a causal relationship between Justin Gray's health problems and John Gray's lead poisoning. Plaintiffs could produce as of this date an expert's report stating to a reasonable degree of medical certainty that lead poisoning in males causes abnormalities in sperm morphology and motility and that it increases the lead content of seminal fluid."

On February 28, 1983, Stillman's motion for summary judgment was heard in the presence of plaintiffs' counsel and an order was entered that stated:

"The plaintiff[s] having admitted that they have no opinion based on reasonable medical certainty that there is any relationship between John Gray's lead poisoning and Justin Gray's health problems, which are the subject of this law suit, the defendant's motion for summary judgment is granted." ¹

On the same day the court also entered a dismissal stipulation signed by plaintiffs' counsel whereby plaintiffs agreed to drop their complaint against Butter. ²

Throughout these proceedings, from the filing of the complaint through the entry of summary judgment more than four years later, plaintiffs were represented by counsel. The dismissal stipulation was also signed by plaintiffs' attorney.

The plaintiffs did not file an appeal but did file, pro se, several motions for relief from judgment on March 1, 1984, more than one year after the motion for summary judgment had been granted against them. Citing Superior Court Rules of Civil Procedure 60(b) and 62(b), plaintiffs' motions assert as grounds both excusable neglect and newly discovered evidence. Approximately two months after filing these motions, plaintiffs obtained the services of another attorney, who filed an amended motion for relief from judgment. The amended motion included an affidavit dated May 21, 1984, which stated (1) that up until the time of entry of summary judgment, plaintiffs' former legal counsel had told them that none of their son's treating physicians could causally connect his health problems to his father's exposure to lead at work; (2) that because of their dissatisfaction with the order of summary judgment, they initiated their own investigation of their son's problems and accordingly had him examined at Mount Sinai Hospital in New York City; and (3) that, as a result of their investigation, plaintiffs "learned for the first time of a probable connection between John's exposure to lead in his workplace and Justin's lead poisoning."

The plaintiffs also submitted a copy of a letter from Dr. Alf Fischbein of the Mount Sinai Medical Center in New York summarizing his review of medical records and laboratory-test results on Justin. After reviewing several studies regarding the increased risk of lead poisoning in children from a father's or mother's occupation, Dr. Fischbein went on to observe that

"[i]n the absence of any other identifiable cause for Justin's high blood lead levels during 1976-1977, it is likely and consistent with reports in the medical literature that the parental occupation in this case was significant. Mr. John Gray worked at a lead processing plant when his son's lead problem was discovered, and the nature of his work was similar to those trades that have been associated with increased risk of lead exposure to members of the workers' household."

A hearing on plaintiffs' motion for relief from judgment was held on May 31, 1984 and a decision was rendered on June 19, 1984, in which the trial justice held that the newly discovered evidence would, with ordinary diligence, have been available at the time of trial and "[t]he fact it has only recently been discovered does not justify a new trial."

Following an order denying plaintiffs' motion, plaintiffs, once again pro se, filed a notice of appeal to this court on July 10, 1984. The case was heard on the show-cause calendar in March 1985. After hearing arguments, this court concluded that plaintiffs had shown cause why their appeal should not be summarily dismissed, and the case was reassigned to the full argument calendar.

On appeal plaintiffs argue essentially two points. First, summary judgment was improperly granted because genuine issues of material fact were present that, plaintiffs assert, causally connect Justin's health problems with his father's occupation. Specifically, plaintiffs allege that John Gray's work clothing was one probable source of Justin's lead contamination. They also appear to contest the entry of the summary judgment on the ground that they did not give their attorney consent to enter into it.

Second, plaintiffs argue that contrary to the trial justice's conclusion, they were duly diligent in obtaining the new evidence in part because it was a major undertaking for them to arrange to have Justin examined in New York.

Stillman argues that plaintiffs' motion for relief from judgment was time-barred because it was filed more than one year after the entry of judgment, in violation of the mandate of Rule 60(b). ³

Stillman also asserts that no new evidence was introduced that could not have been produced when the case was reached for trial. Finally, Stillman notes that the trial judge had an alternative basis for her denial of the amended motion for relief from judgment. The plaintiffs' motion contains a medical report that, Stillman maintains, fails to establish a causal relationship between John Gray's employment and his son's health problems in terms of probability as opposed to mere possibility and therefore is inadmissible.

We begin our analysis by noting that the first of plaintiffs' claims, that summary judgment was improperly granted, should have been properly raised on appeal. A motion for relief from judgment cannot be used as a substitute for an appeal. Pagan v. American Airlines, Inc., 534 F.2d 990, 992-93 (1st Cir.1976). Nor can a Rule 60(b) motion be used to circumvent the time limits...