Mills Justice, Superior Court
trial on plaintiff's complaint was held over the course
of four days, November 18-20, 2015 and December 1,
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. The court has considered the
testimony, deposition testimony,  exhibits, and arguments
of counsel. For the following reasons, judgment is
entered in favor of defendant.
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.
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.)
Attorney Kline argued second the court was overly solicitous
to plaintiff's counsel. (11/20/15 tr. 5:9-7:1.)
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.)
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.)
court addresses each of Attorney Kline's arguments.
Positioning, Speaking Softly, Signaling,
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.)
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;
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.)
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.)
Court Overly Solicitous to Plaintiff's Counsel
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.)
court is satisfied the following examples noted by Attorney
Kline do not show favorable treatment to plaintiff's
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.)
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.
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.)
following instances were not raised by Attorney Kline but
show the court was not overly solicitous to plaintiff's
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.)
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.)
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.)
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.)
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.)
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.)
court asked Attorney Sullivan to stand when he made
objections. (11/18/15 tr. 203:5-6.)
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.
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.)
Ms. Moulton's Fifth Amendment Privilege
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.
Impeachment of Ms. Moulton regarding the day on which she was
in touch with defendant. (11/20/15 tr. 8:2-11.)
impropriety of treating Jeremy Grendell. (11/20/15 tr.
steps Ms. Moulton took to hide Mr. Grendell's treatment
from defendant. (11/20/15 tr. 8:21-25.)
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.)
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
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.)
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.
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.").
Court's Decision to Leave Record Open for Testimony
of an OSHA Witness
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
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.").
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.)
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.
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.
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.
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
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.
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).
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.
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.
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 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
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.)
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.
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.)
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.) 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.) 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.
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.
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.)
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.
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.)
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.
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.
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