Mattoon v. City of Pittsfield

• Decision Date: 27 September 2002
• Docket Number: No. 99-P-459.,99-P-459.
• Citation: 775 N.E.2d 770,56 Mass. App. Ct. 124
• Parties: Kimberly MATTOON & others<SMALL><SUP>1</SUP></SMALL> v. CITY OF PITTSFIELD.
• Court: Appeals Court of Massachusetts

Page 770

775 N.E.2d 770

56 Mass. App. Ct. 124

Kimberly MATTOON & others¹ v. CITY OF PITTSFIELD.

No. 99-P-459.

Appeals Court of Massachusetts, Berkshire.

Argued October 12, 2001.

Decided September 27, 2002.

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Alma R. Arlos, Pittsfield, for the plaintiffs.

Jonathan I. Handler, Boston, for the defendant.

Present: PORADA, SMITH, & GILLERMAN, JJ.

SMITH, J.

In June of 1988, the plaintiffs brought a class action complaint in the United States District Court for the District of Massachusetts, claiming that they had contracted giardiasis (an illness caused by giardia, a parasite found in the intestines of certain animals) as a result of contamination of the public water supply of the city of Pittsfield (city) in November and December of 1985. The plaintiffs named the city as a defendant, and also named various consultants who had advised the city regarding its water supply. The Federal District Court denied the plaintiffs' motion to certify the class.

The defendants filed motions for summary judgment. On November 13, 1991, the Federal District Court allowed those motions as to the plaintiffs' Federal claims. However, the court dismissed the plaintiffs' State law claims without prejudice to allow the plaintiffs to pursue those claims in Massachusetts courts. The plaintiffs appealed from the judgment disposing of their Federal claims. On November 20, 1992, the United States Court of Appeals for the First Circuit affirmed that judgment. Mattoon v. Pittsfield, 980 F.2d 1 (1st Cir.1992).

On November 2, 1993, the plaintiffs filed a timely complaint in Berkshire County Superior Court. The complaint contained counts for breach of express warranty, breach of implied warranty, public nuisance, and negligence. Subsequently, the counts against the various consultants were dismissed, leaving the city as the only defendant.

On November 1, 1994, the city filed a motion for summary judgment. After a hearing, the plaintiffs' public nuisance count was dismissed, but the judge denied the motion with respect to the negligence and warranty counts, ruling that the city was not immune from those claims pursuant to G.L. c. 258. (The city has filed a cross appeal challenging the judge's partial denial of its motion.)

A jury-waived trial on the issue of liability commenced before a Superior Court judge on June 17, 1996. At the end of the seventh day of trial, and after the plaintiffs had rested, the city filed a motion pursuant to Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974), to dismiss the case because the facts and law demonstrated that the plaintiffs had not shown any right to relief. The judge allowed the motion.

On appeal, the plaintiffs challenge the dismissal of their complaint and certain evidentiary rulings made prior to and during the trial.

Facts. As background, we recite the evidence introduced at trial in the light most favorable to the plaintiffs. See Addis v. Steele, 38 Mass.App.Ct. 433, 436, 648 N.E.2d 773 (1995).

As of 1985, the city had for many years owned and operated a public water system and sold water to users in Pittsfield and adjacent communities. The water was stored and used for all purposes. Before distributing the water to residents and businesses, the city treated the water with chlorine.

In 1985, the city, as part of its everyday operation of its water system, took chlorine residual tests and turbidity tests. The more turbidity that was found in the water, the more chlorine had to be added to obtain a required residual level. In addition, the city's health department collected weekly samples of the water and tested it for coliform bacteria, in order to ensure an uncontaminated water supply.

In November of 1985, the city's water was supplied by the Cleveland, Farnham, and Ashley reservoirs. The watersheds feeding those reservoirs contained approximately 6,000 acres. Also in November of 1985, the city was in the midst of the construction phase of a project to install a system of filtration for the treatment of water. At that time, the city's commissioner for public utilities, William Forestell, made the decision to begin drawing from the city's Ashley reservoir (Ashley) to assist in supplying Pittsfield with water. Ashley was a small reservoir holding approximately 3,000,000 to 4,000,000 gallons of water and was principally supplied by Ashley Lake. Ashley had not been used since approximately July of 1983, but it was needed in 1985 to accommodate the reduced flow from another reservoir occasioned by the construction.

Beavers and other mammals were known by Forestell to inhabit the watershed areas surrounding all of the reservoirs, including Ashley. Giardia cysts can be carried in the intestines of beavers, and if their feces are introduced into a water supply, drinking that water may result in giardiasis. As part of his job, Forestell had to familiarize himself with the potential pollutants of the water in the reservoirs, including giardia. Forestell was also aware that in the past, beavers had been implicated in carrying giardia into the water supply.

On November 5, 1985, a city employee, John Razzano, was told to "start Ashley up." Razzano, however, failed to check the valves on all the pipes designed to chlorinate the water coming from the reservoir. As a result, some of the chlorine went into the wrong water pipe, thereby not completely chlorinating the water flowing from Ashley into the city's water distribution system. It was immediately discovered that the chlorine residual levels obtained at Ashley were not the residuals desired. Although the desired chlorine residual was 3.0 parts per million, the first test showed a reading of 0.5 parts per million. During the month of November, the chlorine residuals did not go above 0.5 parts per million until the final day of the month.

Forestell became aware of the low chlorine residual at Ashley approximately one week after Ashley went on line, but he did not investigate firsthand the cause of the problem until November 30, 1985. On that date, he went to Ashley and discovered that a valve had been left open, which caused chlorine to enter the wrong pipe and thus not go into the water flowing to the consumers. The valve was closed and a chlorine residual of 3.0 parts per million was obtained.

After a person has been exposed to giardia, the incubation period for giardiasis depends upon the amount ingested and can be anywhere from forty-eight hours to one month or six weeks. On the Monday following Thanksgiving in 1985, Dr. George Douglas, a pathologist working with Berkshire Medical Center, discovered an unusual number of giardiasis cases were being presented there for that time of year. He reported that fact to the city's health commissioner, Louis Bolduc, who reported it to the Department of Public Health (DPH) and to the Department of Environmental Quality Engineering (DEQE). An investigative team was formed consisting of employees of the city's health department, the city's water department, the DEQE, the DPH, and the Federal Centers for Disease Control and Prevention. On December 13, 1985, the DEQE issued an order requiring the city to advise its residents to boil water prior to consumption. The DEQE also asked the city to increase the chlorine amount in the water system. In December of 1985, Ashley was taken off line and not reopened until the city's new filtration plant began operation. The DEQE lifted the requirement to boil water on January 24, 1986.

1. Exclusion of plaintiffs' expert's testimony. In dismissing the plaintiffs' complaint, the judge ruled, among other things, that although the city had a duty to provide clean water to its consumers, the plaintiffs did not introduce evidence that the lower chlorine levels in the water were the proximate cause of the plaintiffs' injuries. The plaintiffs claim that the failure of the plaintiffs' proof on the causal connection element was the result, among other things, of the judge's allowance of the city's emergency motion to preclude the testimony of the plaintiffs' expert, which the plaintiffs argue was an abuse of discretion.

We summarize the events leading up to the judge's decision on the motion. The summary is taken from the arguments of both counsel made at the hearing on the motion, and also from certain documents attached to the motion. On appeal, the plaintiffs do not dispute the city's version of the events, but rather argue that the judge misinterpreted the significance of the events.

In 1989, while the matter was in Federal court, the plaintiffs identified Serena Di-Magno as their expert. After the plaintiffs' complaint was filed in the Superior Court, the resulting tracking order listed December 22, 1995, as the date by which discovery was to be completed. By that date, the plaintiffs' expert had not been deposed. At some time later, June 17, 1996, was scheduled as the trial date.

On October 6, 1995, new counsel filed an appearance for the city. On January 16, 1996, the city's new attorney wrote to plaintiffs' counsel inquiring if DiMagno was still the plaintiffs' expert and, if so, he requested that she be made available to have her deposition taken within the next two months. On January 25, the plaintiffs' attorney responded that their expert was still DiMagno but that she was "less important" than some other experts that the plaintiffs had under consideration. The following day, the city's attorney requested that a pretrial conference be held to determine, among other things, the identification of trial witnesses, including experts. The conference was held on February 12, at which time the judge indicated that the plaintiffs must identify within sixty days their experts who would testify at the trial.

The plaintiffs did not identify their experts within the time limit set by the judge, and on April 19, the city's attorney faxed a letter to the plaintiffs' attorney requesting that identification. On April 22, the...