Oggiani v. Chief Justice of the Trial Court, et al. (Lawyers Weekly No. 10-007-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12120 JOAN E. OGGIANI vs. CHIEF JUSTICE OF THE TRIAL COURT & others.[1] January 6, 2017. Supreme Judicial Court, Superintendence of inferior courts, Removal of register of probate. Joan E. Oggiani appeals from a judgment of the county court denying her petition for relief under G. L. c. 211, § 3, from a decision of the register of the Berkshire Division of the Probate and Family Court Department of the Trial Court, with the approval of the Chief Justice of the Probate and Family Court, removing her designation as deputy assistant register pursuant to G. L. c. 217, § 29D.[2] We affirm the judgment. Oggiani, who has been an employee of the Berkshire Division of the Probate and Family Court since 1980, was designated as the deputy assistant register when that position was created in 1993. As deputy assistant register, she had certain responsibilities in addition to those of her primary position as a judicial secretary, and she received additional compensation as required by the statute. In 2015, the register requested the approval of the Chief Justice of the Probate and Family Court to remove Oggiani’s designation, stating that her performance as deputy assistant register did not meet his expectations.[3] Oggiani objected and disagreed with the register’s characterization of her performance, but the Chief Justice of the Probate and Family Court approved the register’s request. Oggiani then asked the Chief Justice of the Trial Court and the Court Administrator to review the decision.[4] They responded that the decision was final. The single justice did not abuse his discretion or commit an error of law by denying Oggiani’s petition for relief in these circumstances.[5] Under the plain language of G. L. c. 217, § 29D, a register has the authority to designate and remove a deputy assistant register. These appear to be discretionary decisions for the register to make, subject only to the approval of the Chief Justice of the Probate and Family Court.[6] The statute does not state that a register must establish good cause — or indeed, any reason at all — for removal. This is not a case where the employee alleges that her designation was removed on an improper basis such as race or gender discrimination under G. L. c. 151B, in violation of any public policy, or without good faith. She only disagrees with […]
Commonwealth v. Robinson (Lawyers Weekly No. 12-001-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 0084CR10975 ____________________ COMMONWEALTH v. JASON ROBINSON ____________________ FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ALLOWING DEFENDANT’S MOTION FOR A NEW TRIAL Defendant Jason Robinson was convicted of first degree murder in 2002. He now moves for a new trial on the grounds that: (i) his constitutional right to a public trial was violated because the court was closed during jury empanelment; (ii) there was insufficient evidence to support a conviction for felony-murder; (iii) newly discovered evidence suggests that the Commonwealth’s main witness did not testify truthfully; (iv) the Commonwealth withheld potentially exculpatory evidence; and (v) it is unconstitutional to sentence Robinson to life in prison with no possibility of parole because he was nineteen years old when the victim was killed and his brain was not yet fully developed. The Court conducted an evidentiary hearing regarding Robinson’s public trial claims and has scheduled a further evidentiary hearing regarding his claims about adolescent brain development. The Court concludes that it must ALLOW Robinson’s motion for a new trial and vacate his convictions for murder and unlawful possession of a firearm. As explained below, the Court finds that Robinson was denied his constitutional right to a public trial because the public was barred from the courtroom throughout the jury selection process. It also finds that Robinson did not acquiesce in this courtroom closure or waive his public trial right in any other way: neither Robinson nor his lawyer knew that the public was not allowed to observe the jury voir dire; defense counsel was not aware of any general practice of barring the public from jury selection; and this is Robinson’s first motion for a new trial and the first post-verdict opportunity Robinson has had to raise this claim of error. There is no merit to the Commonwealth’s assertion that any failure to object at trial to a courtroom closure waives the error, even if the defendant and his counsel did not know and had no reason to suspect that it was happening. The Court is therefore required – 2 – by law to vacate Robinson’s convictions and order a new trial without inquiring whether Robinson has demonstrated that the unlawful courtroom closure created any substantial risk or likelihood of a miscarriage of justice. 1. Procedural History. The dockets for this case and the transcripts from the trial of this matter indicate the following.1 Jason Robinson and codefendant Tanzerious Anderson were tried together in 2002. Robinson was indicted on one charge of murder in the first degree, two charges of armed robbery, and one charge of unlawful possession of a firearm. The case was tried before Judge Barbara Rouse. Trial of this case took […]
Commonwealth v. Cawthron (and three companion cases) (Lawyers Weekly No. 11-003-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1751 Appeals Court COMMONWEALTH vs. KEITH CAWTHRON (and three companion cases[1]). No. 15-P-1751. Middlesex. November 10, 2016. – January 6, 2017. Present: Trainor, Meade, & Hanlon, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Admissions and confessions. Evidence, Admissions and confessions. Constitutional Law, Admissions and confessions, Investigatory stop. Due Process of Law, Police custody. Indictments found and returned in the Superior Court Department on April 24, 2014. Pretrial motions to suppress evidence were heard by Kenneth W. Salinger, J., and a motion for reconsideration was considered by him. An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Timothy Ferriter, Assistant District Attorney, for the Commonwealth. Thomas M. Glynn for Keith M. Cawthron. Daniel E. Callahan, Committee for Public Counsel Services, for Craig Flodstrom. MEADE, J. A Middlesex County grand jury indicted the defendant, Keith M. Cawthron, and the codefendant, Craig Flodstrom, for trafficking in an amount more than eighteen and less than thirty-six grams of oxycodone, in violation of G. L. c. 94C, § 32E(c)(1), and conspiracy to traffic oxycodone, in violation of G. L. c. 94C, § 40. Prior to trial, the defendants moved to suppress the oxycodone and statements they made at the time they were stopped by the police. After conducting an evidentiary hearing, the motion judge issued findings and an order that allowed Cawthron’s motion to suppress in full, and allowed Flodstrom’s motion to suppress in part and denied it in part.[2] The Commonwealth timely noticed an appeal, and a single justice of the Supreme Judicial Court allowed the Commonwealth’s application for leave to pursue an interlocutory appeal and reported the matter to this court. See G. L. c. 278, § 28E; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). This appeal presents the question whether the conduct of the police officers, during the course of an investigatory stop, elevated that stop to one of custodial interrogation requiring the recitation of Miranda rights. The motion judge determined that it did. We reverse. Background. Detective Michael Donovan and Detective Lieutenant Ryan Columbus of the Tewksbury police department testified at the motion hearing.[3] The motion judge made detailed findings of fact to support his order, as […]
Commonwealth v. Martinez (Lawyers Weekly No. 10-005-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11657 COMMONWEALTH vs. RAFAEL MARTINEZ. Essex. September 9, 2016. – January 5, 2017. Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ. Homicide. Evidence, Videotape, Relevancy and materiality, Inflammatory evidence, Consciousness of guilt. Practice, Criminal, Capital case, Redaction, Voir dire, Opening statement, Argument by prosecutor. Indictment found and returned in the Superior Court Department on June 29, 2011. The case was tried before Timothy Q. Feeley, J. Amy M. Belger for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. GAZIANO, J. The victim, Timothy Walker, was shot while seated and talking with two friends on the porch of his grandmother’s house in the Tower Hill section of Lawrence. Despite two eyewitnesses, and surveillance video recordings of the incident obtained from nearby businesses, police were unable to identify a suspect. Nine months after the victim’s death, a local television station featured the shooting in an “unsolved crime” series news broadcast that included portions of the surveillance footage showing the suspect, whose face was not discernable. The defendant watched the news broadcast with his girl friend’s mother and told her that he had been the shooter. At the defendant’s trial, the Superior Court judge allowed the admission in evidence, over the defendant’s objection, of a redacted version of the news broadcast. The jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation. On appeal, the defendant’s principal argument is that the news broadcast should not have been admitted in evidence, or, alternatively, that it should have been more heavily redacted, because much of it was irrelevant, inflammatory, and highly prejudicial. The defendant also claims error in certain aspects of the judge’s conduct of the voir dire of the venire and two of the judge’s evidentiary rulings. Finally, the defendant contends that several statements in the prosecutor’s opening statement and closing argument were improper. We conclude that there was no abuse of discretion in the judge’s decision to allow admission of the news broadcast, and no error requiring reversal in the defendant’s other challenges. Having carefully examined the record pursuant to our duty under G. L. c. 278, § 33E, we discern no reason to order a new trial or to reduce the degree of guilt. We therefore affirm the defendant’s conviction. Facts. […]
Middlesex Integrative Medicine, Inc. v. Massachusetts Department of Public Health (Lawyers Weekly No. 12-180-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2014-2727-BLS1 MIDDLESEX INTEGRATIVE MEDICINE, INC. vs. MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH MEMORANDUM OF DECISION AND ORDER ON PARTIES’ CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS The plaintiff, Middlesex Integrative Medicine, Inc. (MIM), filed this action in the nature of certiorari under G. L. c. 249, § 4 against the defendant, the Massachusetts Department of Public Health (Department), after the Department denied each of MIM’s three applications to operate Registered Marijuana Dispensaries (RMDs) in Massachusetts. MIM and the Department have each moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c). On November 21, 2016, this court held a hearing on the motions. For the reasons stated below, MIM’s motion for judgment on the pleadings is DENIED and the Department’s motion for judgment on the pleadings is ALLOWED. BACKGROUND In November, 2012, Massachusetts voters approved a ballot initiative allowing for the medical use of marijuana for qualifying patients. Thereafter, the Legislature enacted Chapter 369 of the Acts of 2012, known as “An Act for the Humanitarian Medical Use of Marijuana” (Act). St. 2012, c. 369. The Act authorized the Department to register at least one, and up to five, RMDs in each Massachusetts county, up to a total of 35 statewide, during the first year after the law’s effective date (January 1, 2013). G. L. c. 94C, App. § 1-9. Pursuant to the Act, the Department promulgated regulations (105 Code Mass. Regs. § 725.001 et seq.) which established, among other things, a two phase application process. In Phase 1, the applicant paid a non-refundable fee and submitted basic information that was reviewed by the Department. See 105 Code Mass. Regs. § 725.100(B)(1). If the applicant submitted all of the required information in a timely fashion, the applicant was notified that it could proceed to Phase 2. See id. at § 725.100(B)(2). In this phase, the applicant paid a nonrefundable $ 30,000 fee and submitted an application containing much more detailed information about its proposed dispensary, after which the Department evaluated and scored the application. See id. at § 725.100(B)(3)-(5). MIM sought to operate three RMDs – one in Middlesex County (Everett), one in Norfolk County (Norwood), and one in Worcester County (Shrewsbury). In August 2013, MIM filed a a Phase 1 application for each location and, along with other applicants, MIM was invited by the Department to submit Phase 2 applications. On November 21, 2013, MIM paid the Department $ 90,000 and filed three Phase 2 applications. Out of a possible 163 points, MIM received scores of 118, 127, and 118 on its three applications. On January 31, 2014, the Department announced the selection of 20 applicants to receive […]
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Commonwealth v. Chism, et al. (Lawyers Weekly No. 10-004-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11939 COMMONWEALTH vs. PHILIP CHISM & others.[1] Suffolk. September 7, 2016. – January 4, 2017. Present: Gants, C.J., Botsford, Hines, Gaziano, & Budd, JJ. Impoundment. Fair Trial. Evidence, Videotape. Public Records. Constitutional Law, Impoundment order, Fair trial. Practice, Criminal, Impoundment order, Motion to suppress, Record, Fair trial. Uniform Rules on Impoundment Procedure. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 6, 2015. The case was heard by Duffly, J. Jonathan M. Albano (Emma D. Hall with him) for Boston Globe Media Partners, LLC. Patrick Levin, Committee for Public Counsel Services, for the defendant. Zachary C. Kleinsasser, for Eagle Tribune Publishing Company, Inc., was present but did not argue. GANTS, C.J. The issue on appeal is whether a Superior Court judge committed an error of law or abused his discretion in denying a defendant’s motion to impound a video recording and transcript of a police interview with the defendant that was the subject of a motion to suppress and that was subsequently suppressed. We conclude that the judge applied the correct legal standard in deciding that motion. We also conclude that, where the judge considered both the presumption of public access to judicial records and the defendant’s right to a trial decided by a fair and impartial jury, and where he subsequently forbade the duplication of the video recording and transcript, the judge did not abuse his discretion in denying the motion. Background. In the early evening of October 22, 2013, the defendant’s mother informed the Danvers police department that the defendant, who was fourteen years old at the time, was missing. Shortly after midnight on October 23, a Danvers police officer located the defendant walking on a road in Topsfield and transported him to the Topsfield police station, where the backpack he had been carrying was inventoried and he was briefly questioned by the police. The defendant was then transported to the Danvers police station, where, in the presence of his mother, he was interviewed at approximately 2:30 A.M. by a State trooper and a Danvers police sergeant. The entire interview was video recorded. During this interview, the defendant admitted that he had killed Colleen Ritzer (victim), a teacher at Danvers High School, and described the killing and the […]
Alves v. Massachusetts State Police, et al. (Lawyers Weekly No. 11-001-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1531 Appeals Court DAVID A. ALVES vs. MASSACHUSETTS STATE POLICE & others.[1] No. 15-P-1531. Bristol. November 3, 2016. – January 4, 2017. Present: Agnes, Blake, & Desmond, JJ. Res Judicata. Collateral Estoppel. Judgment, Preclusive effect. Negligence, Police. Practice, Civil, Summary judgment. State Police. Civil action commenced in the Superior Court Department on June 29, 2012. The case was heard by Richard T. Moses, J., on a motion for summary judgment. Sonja L. Deyoe for the plaintiff. Adam R. LaGrassa, Assistant Attorney General, for Massachusetts State Police. BLAKE, J. Following the execution of an anticipatory search warrant, Massachusetts State police officers arrested the plaintiff, David A. Alves, on various charges stemming from the seizure of a package containing approximately twenty-five pounds of marijuana. The charges were subsequently dismissed, whereupon Alves filed a civil suit in the Superior Court asserting Federal civil rights violations against two State police officers, Paul Baker and William Donnelly, and negligence claims against the State police. The officers removed the Federal claims to the United States District Court for the District of Massachusetts (Federal District Court), where a magistrate judge allowed Baker’s motion for summary judgment.[2] The State police then filed a motion for summary judgment in the Superior Court, where the State-based claims remained. Relying on the findings of fact made by the magistrate judge in his resolution of the Federal claims, a judge of the Superior Court allowed the motion. Alves now appeals. We agree that the matter is governed by principles of issue preclusion and accordingly affirm. Background. After intercepting a suspicious package addressed to a recipient in Massachusetts, a postal inspector at the processing and distribution center of the United States Postal Service in Providence, Rhode Island obtained a Federal search warrant to search the package.[3] The inspector found approximately twenty-five pounds of marijuana in the package, with an approximate street value of $ 35,000. The inspector contacted Baker, a Massachusetts State police trooper, who obtained an anticipatory search warrant from the Taunton District Court, to be triggered by the acceptance or acquisition of the package, which bore a distinctive tracking number, and was addressed to “John Couture 443 Weir Street, Taunton, MA.” The search warrant authorized the retrieval of the package from “44 [sic] Weir Street . . . [a] […]
Correa v. Schoeck, et al. (Lawyers Weekly No. 12-182-16)
COMMONWEALTH OF MASSACHUSETTS THE SUPERIOR COURT MIDDLESEX, ss. DOCKET NO. 12-CV-4164-H CARMEN CORREA, AS ADMINISTRATRIX FOR THE ESTATE OF YARUSHKA RIVERA, Plaintiff v. ANDREAS P. SCHOECK, M.D., NEW ENGLAND NEUROLOGICAL ASSOCIATES, P.C., AND WALGREEN EASTERN CO., INC., Defendants MEMORANDUM OF DECISION AND ORDER Alleging that Yarushka Rivera suffered a fatal seizure on October 29, 2009, because she did not receive her prescription for the anti-epilectic drug Topamax, the plaintiff Carmen Correa, the administratrix for Ms. Rivera’s estate, commenced this action for wrongful death, punitive damages, and conscious pain and suffering against Ms. Rivera’s treating neurologist, Andreas P. Schoeck, M.D., Dr. Schoeck’s employer, New England Neurological Associates, P.C., and Ms. Rivera’s pharmacy, Walgreen Eastern Co., Inc. Walgreen’s moved for summary judgment on all of the plaintiff’s claims against it, and this court allowed that motion in a margin endorsement in June 2 2016, and in doing so, invited Walgreen’s to file a motion for the entry of a separate and final judgment. This case is before the court on the plaintiff’s motion under Mass. R. Civ. P. 54(b) “to revise or reconsider” the June 2016 Order or, alternatively, to enter separate and final judgment against Walgreen’s. For the following reasons, the plaintiff’s motion is ALLOWED in part and DENIED in part. I. BACKGROUND The following facts, as set forth in the summary judgment record, are undisputed and, where disputed, viewed in the light most favorable to the plaintiff as the non-moving party. See Foster v. Group Health, Inc., 444 Mass. 668, 672 (2005). After suffering a seizure in May 2009, Ms. Rivera came under Dr. Schoeck’s care. Dr. Schoeck prescribed Topamax to treat her seizure disorder. On June 13, 2009, Ms. Rivera filled her Topamax prescription at Walgreen’s Pharmacy in Lawrence, Massachusetts. Ms. Rivera filled another Topamax prescription at Walgreen’s on July 26, 2009. At that time, a Walgreen’s pharmacist informed Ms. Rivera that her insurer, MassHealth would not cover any subsequent prescriptions for Topamax without “prior authorization” from Dr. Schoeck, and that she should contact Dr. Schoeck to obtain this required documentation. Ms. Rivera had a second seizure on September 2, 2009. On September 8, 2009, Walgreen’s informed her, the plaintiff, and Ms. Rivera’s stepfather, Julio Escobar, that 3 MassHealth had denied coverage for Ms. Rivera’s Topamax prescription for lack of prior authorization. Therefore, Walgreen’s could not fill Ms. Rivera’s Topamax prescription at that time unless she paid for it. Ms. Rivera and her family attempted to fill her Topamax prescription at Walgreen’s on September 18, 2009, September 28, 2009, October 12, 2009, and October 13, 2009. Mr. Escobar attempted to obtain the prior authorization by telephoning Dr. Schoeck’s office several times between July and October 2009. Walgreen’s pharmacy computer […]
Commonwealth v. Antone (Lawyers Weekly No. 11-002-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1802 Appeals Court COMMONWEALTH vs. DANNY ANTONE. No. 14-P-1802. Bristol. February 5, 2016. – January 4, 2017. Present: Green, Hanlon, & Henry, JJ. Controlled Substances. Practice, Criminal, New trial, Plea, Conduct of government agents, Disclosure of evidence. Evidence, Certificate of drug analysis, Exculpatory. Indictments found and returned in the Superior Court Department on November 4, 2010. A motion to vacate a guilty plea and for a new trial, filed on October 18, 2012, was heard by Wendie Gershengorn, J., special judicial magistrate, and an order affirming the proposed order of the special judicial magistrate was entered by Renee P. Dupuis, J. Sharon L. Sullivan-Puccini for the defendant. David A. Wittenberg, Assistant District Attorney, for the Commonwealth. HENRY, J. The defendant, Danny Antone, appeals from an order denying his motion to vacate his guilty plea to the offense of trafficking in cocaine (one hundred grams or more), G. L. c. 94C, § 32E(b)(3). His motion arises from the misconduct of Annie Dookhan, a chemist who was employed at the William A. Hinton State Laboratory Institute (Hinton lab or lab). See Commonwealth v. Scott, 467 Mass. 336, 337-342, 349-350 (2014) (describing Dookhan’s misconduct). On appeal, the defendant argues that his motion should have been allowed because (1) there was a reasonable probability that he would not have pleaded guilty if he had known of Dookhan’s misconduct, (2) the Commonwealth failed to provide exculpatory evidence concerning Dookhan’s misconduct, and (3) Dookhan’s misconduct constitutes newly discovered evidence. We affirm. Background. 1. Facts pertaining to plea.[1] As the result of information provided by a confidential informant (CI) in the summer of 2010, the New Bedford police began to conduct surveillance of the defendant. On one occasion they observed him make a variety of maneuvers while driving his vehicle that were consistent with someone conducting “counter surveillance.” The police arranged for the CI to make two controlled purchases of cocaine from the defendant.[2] The police field test of the substance in each controlled purchase was positive for cocaine. Based on this information, the police obtained search warrants on August 13, 2010, for the defendant’s home and vehicle. In preparation for execution of the warrants, the police began surveillance of the defendant’s home on August 18, 2010. At approximately 9:00 P.M., they observed him depart in his vehicle. […]
Hanna v. Williams, et al. (Lawyers Weekly No. 12-181-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 1684CV0722 BLS 1 Lead Case STEPHEN HANNA, as personal representative of the ESTATE OF NATHALIE ROTHBLATT vs. MATTHEW WILLIAMS, RBC CAPITAL MARKETS, LLC, BRADLEY COOK, MICHAEL STARR and TAYLOR GANSON & PERRIN LLP Consolidated With: SUPERIOR COURT CIVIL ACTION No. 1684CV0724 BLS 1 ELLIOT BERKOWITZ, STEVEN BERKOWITZ and ESTHER BERKOWITZ vs. MATTHEW WILLIAMS, RBC CAPITAL MARKETS, LLC, BRADLEY COOK, MICHAEL STARR and TAYLOR GANSON & PERRIN LLP MEMORANDUM AND ORDER ON MOTIONS TO DISMISS Alleged misconduct by lawyers and a financial advisor to cause a 91-year old, infirm woman to execute a new will six days before she died resulted in disputes over the distribution of her $ 12 million estate. The disputes among the possible heirs were, ultimately, settled by a compromise agreement. The probate court approved that agreement by a Decree and Order of Compromise. Now three of the heirs, who were parties to the compromise agreement, sue the lawyers and the financial advisor for intentionally and tortiously interfering with their expected 1 inheritance (Civil Action No. 2016 – 0724). The three heirs claim they would have received a much larger inheritance than what they obtained through the compromise agreement but for the conduct of defendants. Also, the personal representative of the estate sues the same defendants to recover the legal fees paid by the estate on behalf of all the heirs, incurred as a result of the litigation, allegedly caused by defendants’ conduct, over the distribution of the estate (Civil Action No. 2016 – 0722). Defendants move to dismiss all claims contending that (a) this court lacks subject matter jurisdiction over plaintiffs’ claims as a result of the proceedings in the probate court, and (b) the complaints fail to state a claim upon which relief may be granted.1 BACKGROUND The following facts are taken from the complaints. For the purposes of these motions, the factual allegations, and reasonable inferences therefrom, are taken as true. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Events Surrounding Execution of Will and Trust In 2013, Nathalie Rothblatt was a 91 year-old widow. On March 7, 2013, Rothblatt fell and broke her hip. She was taken to Beverly Hospital. At that time she suffered various other ailments such as chronic congestive heart failure, kidney failure and low blood pressure. She suffered from severe pain from the broken hip, as well as dizziness and difficulty concentrating. She was placed on medication including morphine and dopamine that affected her cognition. During her hospitalization she suffered bouts of disorientation, delusions, and confusion. She did 1 The financial advisory defendants also move to compel arbitration. See Part C of this memorandum. 2 not […]