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Shafran v. Cook

Superior Court of Maine, Cumberland

March 13, 2017



          Nancy Mills Justice, Superior Court

         Jury-waived trial on plaintiff's complaint was held over the course of four days, November 18-20, 2015 and December 1, 2016.[1] Both parties appeared and were represented by counsel. Plaintiff alleges a violation of the Maine Human Rights Act (Whistleblower), count I; intentional infliction of emotional distress, count III; negligent infliction of emotional distress, count IV; defamation, count V; and slander per se, count VI.[2] The court has considered the testimony, deposition testimony, [3] exhibits, and arguments of counsel.[4] For the following reasons, judgment is entered in favor of defendant.


         On the third day of trial, defendant's attorney, Robert Kline, announced he would call no witnesses, in spite of his having told the court and counsel at the close of the second day of trial that he would be prepared to call Michelle Dixon, Melanie Jacques, and defendant as witnesses. (11/19/15 tr. 276-77; 11/20/15 tr. 2.) Instead, he represented to the court his view that he and his client had received unfair and prejudicial treatment throughout the trial. (11/20/15 tr. 2:21-18:1.)

         (A) Specifically, he argued first he was left on his own to deal with the following concerns despite his objections. (11/20/15 tr. 5:2-8.) (1) The court did not address adequately his objections regarding plaintiff's counsel's positioning between a witness and Attorney Kline, (2) plaintiff's counsel and witnesses spoke softly, (3) witnesses signaled objections to plaintiff's counsel, and (4) witnesses were argumentative. (11/20/15 tr. 4:12-22.)

         (B) Attorney Kline argued second the court was overly solicitous to plaintiff's counsel. (11/20/15 tr. 5:9-7:1.)

         (C) Attorney Kline argued third the court's concerns about Courtney Moulton's Fifth Amendment rights interfered with his cross-examination. (11/20/15 tr. 7:2-13:10.)

         (D) Attorney Kline argued finally the court's decision to leave the record open to allow plaintiff to present testimony from a witness prejudiced Attorney Kline and his client. (11/20/15 tr. 13:11-17:21.)

         The court addresses each of Attorney Kline's arguments.

         (A) Positioning, Speaking Softly, Signaling, Argumentative

         (1) With regard to Attorney Kline's first argument about plaintiff's counsel positioning, the trial transcripts reflect that plaintiff's counsel adjusted his positioning, apologized, and repeated questions when asked. (See, e.g., 11/18/15 tr. 63:6-8; 64:10-19; 78:17-18; 156:8-12; 11/19/15 tr. 18:7-9; 37:8-10; 49:23-50:2.)

          (2) With regard to Attorney Kline's complaint that counsel and witnesses spoke softly, in each instance the question or statement was repeated. (See 11/18/15 tr. 78:17-18; 100:4; 156:8-12; 168:12; 175:6; 181:25; 206:16-19; 11/19/15 tr. 18:7-9; 20:3; 31:6; 37:8-10; 43:16; 49:18; 49:23-50:2; 52:19; 58:18; 86:11-13; 115:4-5; 164:5-6; 198:12; 212:3-4; 214:4-7.)

         (3) With regard to the allegation that witnesses were signaling, Attorney Kline once noted that a witness was looking at Attorney Mehnert. (11/19/15 tr. 179:13-25.)

         (4) With regard to argumentative witnesses, Attorney Kline stated he believed Chelsea Huntington was being difficult with him. The court disagreed. (11/18/15 tr. 248:20-249:25.) In contrast, defendant testified she could not remember, did not know, or stated "possibly" in response to Attorney Sullivan's questions seventeen times. (11/18/15 tr. 34:21; 35:6-7; 38:15; 41:6; 42:12-15; 51:24; 53:5-7; 60:13-61:7; 72:15; 80:22; 81:1-2; 82:14-17; 85:5; 86:22; 88:18-24; 101:13; 102:7.)

         (B) Court Overly Solicitous to Plaintiff's Counsel

         Attorney Kline next argued that the court was overly solicitous to plaintiff's counsel. This argument is not supported by the record. (11/18/15 tr. 5:5-6:21; 15:11-15; 55:16-56:3; 58:17-59:12; 76:6-18; 103:1-8; 203:5-6.)

         The court is satisfied the following examples noted by Attorney Kline do not show favorable treatment to plaintiff's counsel.

         (1) The court agreed to plaintiff's request for a recess at approximately 10:00 a.m. but declined Attorney Kline's request for a recess at 12:10 p.m. The court wanted to complete the examination of plaintiff before the lunch recess, which was taken at 1:11 p.m. (11/19/15 tr. 68:25-69:1; 138:22-139:1; 190:22.)

         (2) The court solicited information about plaintiff's counsel's inability to present the testimony of an OSHA witness, who had been subpoenaed. (11/20/15 tr. 6:14-16; 11/18/15 tr. 53:13-59:15; 276:9-277:24; 11/19/15 tr. 274:8-277:12.)

         (3) Plaintiffs counsel objected to the testimony of Dr. Greg Sarka on relevance grounds. The court responded by asking whether Attorney Kline's examination of Dr. Sarka was relevant. (11/20/15 tr. 6:17-7:1.) Plaintiff's counsel's objection to the testimony was sustained twice. (11/19/15 tr. 264:14-266:14.)

         The following instances were not raised by Attorney Kline but show the court was not overly solicitous to plaintiff's counsel.

         (1) The court agreed to Attorney Kline's suggested compromise in response to Attorney Sullivan's request that David Cook be sequestered. (11/18/15 tr. 5:5-6:21.)

         (2)The court scheduled trial to minimize disruption to defendant's practice. (11/18/15 tr. 15:11-15; 11/20/15 tr. 13:22-14:1; 12/1/16 tr. 309.)

         (3) The court told Attorney Sullivan that people may not simply convey to him that a person under subpoena will not be allowed to testify. (11/18/15 tr. 53:13-56:3.)

         (4) The court told Attorney Sullivan that it would not be fair to defendant to allow Attorney Sullivan to introduce a document that cannot be cross examined due to the absence of the record's custodian. (11/18/15 tr. 58:17-59:12.)

         (5) The court requested that Attorney Sullivan remove extra exhibits in response to Attorney Kline's concerns about duplicates and notes that were not in defendant's handwriting. (11/18/15 tr. 76:6-18.)

         (6) The court allowed Attorney Kline to call defendant at a later time and not examine her after Attorney Sullivan's examination. (11/18/15 tr. 103:1-8.)

         (7) The court asked Attorney Sullivan to stand when he made objections. (11/18/15 tr. 203:5-6.)

         (8) During the first two days of trial, the amount of time permitted for each party's examinations of the witnesses was approximately equal: Attorney Kline's examinations totaled 352 minutes; plaintiffs attorneys' examinations totaled approximately 341 minutes.

         (9) During the first two days of trial, the court sustained the majority of objections from both Attorney Kline and plaintiffs counsel: 59% (19/32) of Attorney Kline's objections were sustained and 41% (13/32) of his objections were overruled; 75% (30/40) of plaintiff's attorneys' objections were sustained and 25% (10/40) of their objections were overruled. (Attorney Kline's objections were sustained: 11/18/15 tr. 69:22-70:1; 83;24-S4-.3; 117:13-16; 168:4-23; 172:10-14; 173:16-22; 174:21-175:12; 190:11-18; 193:23-194:2; 194:12-21; 266:23-267:6; 269:16-270:15; 272:18-20; 11/19/15 tr. 29:7-12; 31:10-32:8; 37:14-16; 45:12-14; 61:9-12; 185:2-8. Attorney Kline's objections were overruled: 11/18/15 tr. 152:1-18; 152:25-153:7; 164:6-21; 181:15-21; 192:17-24; 11/19/15 tr. 33:13-16; 43:4-44:4; 68:11-18; 75:8-22; 76;25-77;3; 187:9-17; 252:14-253:14; 254:2-14. Attorney Sullivan's objections were sustained: 11/18/15 tr. 206:1-2; 206:7-9; 223:15-224:12; 229:8-13; 11/19/15 tr. 112:1-5; 195:14-16; 204:23-205:1; 225:1-2. Attorney Sullivan's objections were overruled: 11/18/15 tr. 142:4-144:23; 203:3-13; 220:6-22; 222:20-25; 226:24-227:2; 255:6-23; 11/19/15 tr. 262:16-263:2, Attorney Mehnert's objections were sustained: 11/18/15 tr. 215:12-17; 11/19/15 tr. 91:21-22; 96:10-97:1; 99:9-13; 132:8-14; 135:12-13; 137:25-138:10; 143:11-19; 155:4-156:18; 175:18-176:4; 177:6-178:5; 178:16-179:11; 180:20-25; 231:22-232:2; 235:7-13; 237:11-14; 238:3-6; 240:6-13; 246:22-25; 248:2-5; 249:21-250:6; 267:17-19. Attorney Mehnert's objections were overruled: 11/19/15 tr. 92:14-20; 147:14-23; 163:18-164:4.)

         (C) Ms. Moulton's Fifth Amendment Privilege

         Attorney Kline argued next that the court's concerns about Ms. Moulton's Fifth Amendment rights interfered with his cross examination of her. He argues that he was not able to pursue the following areas of cross-examination.

         (1) Impeachment of Ms. Moulton regarding the day on which she was in touch with defendant. (11/20/15 tr. 8:2-11.)

         (2) The impropriety of treating Jeremy Grendell. (11/20/15 tr. 8:14-20.)

         (3) The steps Ms. Moulton took to hide Mr. Grendell's treatment from defendant. (11/20/15 tr. 8:21-25.)

         (4) The violation of Board of Dental Examiners rules (11/20/15 tr. 9:1-4.) (5)Ms. Moulton's lack of cooperation with regard to service of process (11/20/15 tr. 9:5-15.)

         Attorney Kline cannot claim prejudice on the ground that a witness's Fifth Amendment privilege interfered with his questioning. State v. Brown, 321 A.2d 478, 483 (Me. 1974) ("A party seeking to question a witness may not claim that the court prevented relevant questioning or intimidated witnesses into silence by virtue of the fact that the court advised such witnesses of their constitutional rights.").

         Attorney Kline argued that he was distracted by Ms. Moulton's attorney, Attorney Bly, and plaintiff's counsel. (11/20/15 tr. 10:11-21; 11/19/15 tr. 230:16-250:17.) The court offered defendant the opportunity to recall Ms. Moulton when the trial resumed on December 1, 2016, as Attorney Kline had previously suggested. (12/1/16 tr. 4-5; 11/20/15 tr. 16.) The court's offer was declined. (12/1/16 tr. 304.)

         Attorney Kline argued that his time for examination of Dr, Sarka was shortened by the testimony of Ms. Moulton. (11/20/15 tr. 12:1-18; 11/19/15 tr. 228:22-229:1.) After Dr. Sarka's testimony was completed, the court discussed several matters with counsel and then recessed at 4:01 p.m. (11/19/15 tr. 268:19-277:18.) There was additional time until at least 4:30 p.m. to continue the examination of Dr. Sarka on November 19, 2015. Further, no request to recall Dr. Sarka was made on November 20, 2015 or December 1, 2016.

         Attorney Kline was not prepared to "trigger an adverse inference argument." (11/20/15 tr. 12:19-13:10). To the extent Attorney Kline is arguing that the court may have drawn an adverse inference from Ms. Moulton's claim of privilege, no adverse inference exists for nonparty witnesses in civil cases. (11/20/15 tr. 12:19-13:10); see M.R. Evid. 513(c) ("Rule 512 governs a nonparty witness's claim of privilege in a civil action or proceeding."); M.R. Evid. 512(a) ('The fact finder may not draw any inference from the claim of privilege.").

         D. Court's Decision to Leave Record Open for Testimony of an OSHA Witness

         Attorney Kline argued finally that the court's decision to leave the record open to allow plaintiff to pursue the testimony of an OSHA witness prejudiced defendant because Attorney Kline did not want to call his witnesses until he heard the OSHA representative's testimony (11/20/15 tr. 13:11-15:1; 11/19/15 tr. 269:24-275:18); see M.R. Civ. P.43(j) ("A party who has rested cannot thereafter introduce further evidence except in rebuttal unless by leave of court.”).

         Attorney Kline has not shown prejudice as a result of the court's discretionary decision to leave the record open. See Dalphonse v. St. Laurent & Son, inc., 2007 ME 53, ¶ 16, 922 A.2d 1200 ('The trial court has discretion in determining whether a party may reopen its case after the close, of the evidence.") (citation omitted); New England Hotel Realty, Inc. v. Finley, 508 A.2d 121, 122 (Me. 1986) ("The consent of the opposing party to a reopening is not necessary in the exercise of discretion by the court.").

         On December 1, 2016, when the trial resumed, the court addressed Attorney Kline's requests stated on November 20, 2015. (11/20/15 tr. 15-17; 12/1/16 tr. 3-5.) The requested transcript of day one and day two of trial was provided to counsel. (12/1/16 tr. 3-4.) Attorney Kline was given the opportunity to speak to the OSHA witness, Mr. Newton. (12/1/16 tr. 4, 13-15.) As discussed, the court offered the opportunity to recall Ms. Moulton or submit her deposition testimony. (12/1/16 tr. 4-5.) The court's offer was declined. (12/1/16 tr. 304.) Attorney Kline's request for a mistrial or new trial was denied. (12/1/16 tr. 5.)


         A. Factual Background

         Defendant is a dentist and operates Bath Family Dental. During 2011, in addition to herself, Bath Family Dental employed plaintiff as a dental hygienist, Ms. Huntington as a dental hygienist, Ms. Dixon as a dental assistant and later front desk person, Ms. Michaud as a dental assistant, Ms. Moulton as a dental assistant, and defendant's husband, Mr. Cook, as practice manager and IT person. As front desk person, Ms. Dixon was responsible for billing, although Mr. Cook had performed that task previously. Cathy Turbyne was the Occupational Safety and Health Act (the Act) compliance officer for Bath Family Dental. The dental assistants assisted defendant and the hygienists. Defendant, Mr. Cook, and Ms. Jacques continued to work at Bath Family Dental at the time of trial.

         During the 2011 timeframe, defendant worked Monday through Wednesday and was in the office on Thursday to do exams for the hygienists' patients. Other employees worked Monday through Thursday. Bath Family Dental had a benefits policy in effect in 2011. (Def.'s Ex. 5.) Employees were offered health insurance, vacation pay, uniform allowance, and continuing education. Employees at Bath Family Dental had yearly trainings with defendant and Dr. Turbyne.

         Plaintiff graduated from Orono High School and attended Bangor Community College. She left college after a semester and worked as a dental assistant. After working for several dentists, she returned to dental hygiene school in Bangor and graduated from the two-year program. She was a clinical instructor at the Bangor dental hygiene school. She worked for a dentist in Belfast and then for another dentist, Dr. Reedy, for sixteen years. She obtained her anesthesia license in 1998. She was a clinical instructor for the local anesthesia program. She also became involved with the Northeast Regional Board of Dental Examiners and was appointed by the Governor as an examiner for eight years.

         She relocated to Portland with her second husband and worked for two dentists until she took a leave of absence from dental hygiene for two years. She began work for defendant on July 14, 2008.

         Defendant grew up in a dental family because her father was a dentist. She attended the University of Maine for one year and then attended dental hygienist school in North Carolina. She worked full-time as a dental hygienist in North Carolina and South Carolina for sixteen to eighteen years. While working full time, she attended college in North Carolina and received a B.A. in biology with a minor in chemistry. She then attended dental school full time at the University of South Carolina and graduated with a Doctor of Medical Dentistry degree in 2005. She financed her education with loans, the sale of her home, and 401K funds.

         She worked with her father in Auburn, Maine and later bought the practice of Dr. Ronald Sawyer in Bath, which became Bath Family Dental. Dr. Sawyer remained a part-time employee and mentor. The facility and equipment were very old and were not compliant with the Act or with the Health Insurance Portability and Accountability Act (HIPAA).

         Bath Family Dental closed from September 23 until October 2, 2011 for renovations. The office opened again on Monday, October 3, 2011. The renovations to the office were a source of pride for defendant and resulted in a dramatic improvement in the practice. Employees were given paid vacation during the renovations. The project exceeded the estimated cost of $22, 500 by $15, 000, which was an unexpected and stressful occurrence for defendant.

         Further, during the summer of 2011, money had been stolen from Bath Family Dental accounts attached to payroll. Defendant borrowed money from her mother to meet the practice's payroll obligations. Although defendant had planned to hire a part time hygienist in 2011, she later decided to proceed with three part-time hygienists based on financial issues.

         During this 2011 time period, defendant had little energy, was unable to sleep, and reacted differently to stressful situations because of a hormone imbalance. Shortly after the events of fall 2011, defendant was diagnosed with an autoimmune form of hypothyroidism, Ms. Huntington[5] graduated from University of New England in May 2010 and has a master's degree in dental hygiene. She taught courses in public health, clinical education, radiology, and dental hygiene ethics at the University of New England for one year. She worked at Bath Family Dental from July 19, 2010 until October 2011. She then worked as a temporary, and then full-time, hygienist in Massachusetts for several years. At the time of trial, she was employed full-time as a dental hygienist in Falmouth. She described everyone at Bath Family Dental as very aware of the Act's protocol and procedures for infection control. She rode to work at Bath Family Dental with plaintiff and they were good friends. Ms. Huntington described plaintiff as the best hygienist Ms. Huntington ever worked with and a mentor to her.

         During the summer of 2011, Ms. Huntington told plaintiff that Ms. Huntington planned to leave Bath Family Dental and move to Boston to be with her boyfriend. At that time, plaintiff had been looking for another job for three years. Ms. Huntington resigned from Bath Family Dental on October 18, 2011, (Pl's Ex. 8.)

         Ms. Moulton began part-time work at Bath Family Dental in March 2010 as a dental assistant. She began working full-time on June 14, 2010. She was trained by a dental assistant and by defendant. Defendant sent Ms. Moulton to school at defendant's expense. Ms. Moulton had pleaded guilty to a charge of theft on November 21, 2006. The Board learned of that conviction when Ms. Moulton applied for a radiology license, and she wrote a letter of explanation. (Def.'s Ex. 44.) She received the license and as a dental assistant can take x-rays.

         Eventually it became clear to those at Bath Family Dental that something was amiss with Ms. Moulton, She spent significant time in the bathroom and took too long to perform her work. She received two verbal warnings on May 14, 2012, for excessive time in the bathroom and for inability to perform work in a timely fashion. (Def.'s Exs. 10-11.)

         Ms. Moulton also was convicted of OUI on May 11, 2012. (Def.'s Ex. 7.) Ms. Jacques explained to defendant about Ms. Moulton's OUI and referred defendant to the newspaper article about the incident. (Def.'s Ex. 7.) Defendant was shocked by this news. Defendant and Mr. Cook investigated the incident. (See Def.'s Ex, 7.[6]) On May 17 and 18, 2012, Ms. Moulton's father called Bath Family Dental on behalf of his daughter. On May 19, 2012, Mr. Cook sent a text to Ms. Moulton and asked that she contact him. (Def.'s Ex. 12.[7]) She was unable to contact Mr. Cook, however, because she was in a rehabilitation facility. When Ms. Moulton did contact Bath Family Dental, she requested a 30-day leave. Defendant told Ms. Moulton she was not welcome back at the office because of the OUI conviction. Defendant also stated Ms. Moulton would never work in the dental field again. Defendant added that she had learned that Mr. Grendell had been in the office.

         Ms. Michaud began working as a dental assistant at Bath Family Dental with Dr. Sawyer, previous owner of Bath Family Dental, in November 2006 and began working for defendant in August 2007. Ms. Michaud worked with plaintiff when she joined the practice in July 2008. At first, Ms. Michaud thought she and plaintiff got along fairly well. During the 2011 time period, Ms. Michaud was diagnosed with breast cancer, had a single mastectomy, underwent radiation and chemotherapy, was preparing for reconstructive surgery, and was wearing a wig.

         Ms. Michaud was disciplined because of a complaint by plaintiff involving prophy paste. According to Ms. Michaud, plaintiff called defendant one evening crying and very upset about the incident and asked defendant to fire Ms. Michaud. Instead, defendant discussed the incident with Ms. Michaud, using the Universal Precautions, wrote a warning, and told her to be careful. Ms. Michaud received a written warning about the prophy paste incident and not effectively disinfecting treatment rooms. Ms. Dixon confirmed that defendant addressed the issue with Ms. Michaud. Because of four previous violations, the warning provided Ms. Michaud would be moved permanently to the front desk if the problem was not corrected. (Def.'s Ex. 45.)

         Ms. Michaud was aware of Ms. Moulton's relationship with Mr. Grendell and his interaction with law enforcement. Neither defendant nor Ms. Michaud approved of Mr. Grendell and defendant made clear he was not to be in the office.

         Ms. Michaud left her employment at Bath Family Dental in December 2014 on good terms with defendant. Ms. Michaud moved to Florida on December 14, 2014. She described herself as a "good employee." (Michaud Dep. 49.)

         Ms. Dixon worked for ten years as a dental assistant and was hired at Bath Family Dental in 2011 as a dental assistant. She assisted defendant, the hygienists, and at the front desk. She left Bath Family Dental in March 2016 and worked at the time of trial as a dental assistant at another practice.

         Ms. Dixon described Bath Family Dental as very clean and organized with strict guidelines. It was one of the cleanest practices at which she had worked.

         Ms. Dixon described plaintiff as "the Queen Bee" of the office and a bully at times. Ms. Dixon believed that if she did not go along with the way plaintiff and Ms. Huntington wanted things to be, Ms. Dixon would not be around. Ms. Dixon recalled that Ms. Huntington and plaintiff discussed work issues during lunch and were not complimentary about defendant. They were critical of defendant and how the office was run. Sometimes Ms. Dixon did not join the others for lunch because she disliked the negative conversations. Ms. Dixon recalled plaintiff calling defendant, as Ms. Dixon testified, a "F'ing B-I-T-C-H, " although plaintiff used the entire words. (12/1/16 tr. 121.) Plaintiff was generally critical of defendant and stated that defendant would ...

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