The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO, CV-97-284
MARK BROWN and
LISA BROWN,
Plaintiffs
Vv. DECISION AND ORDER
JEFFREY LOVITZ, M.D.,
Defendant
This matter is before the court on the defendant's Motion for Partial Summary
Judgment. For the reasons stated herein, the motion is to be denied.
The defendant's motion first asks the court to grant him summary judgment on
the plaintiffs’ claim of negligent infliction of emotional distress (NIED). The plaintiffs
have responded both in their memorandum in opposition and at oral argument that
they have neither pled or claimed the tort of NIED. This assertion is supported by the
text of the complaint which articulates no cause of action for NIED. Instead, the
plaintiffs say that their complaint is one of medical malpractice which, if proven, may
generate a jury awarding them compensatory damages for mental suffering, anguish,
and the like. Such damages are subsumed by any award for the negligence alleged as
an element of the principal tort. Rippett v. Bemis, 672 A.2d 82, 87-88 (Me. 1996). Thus,
because the plaintiffs have made no claim for NIED, the defendant may not have
summary judgment on such a cause of action.
The defendant also requests summary judgment on plaintiff Mark Brown's loss
of consortium claim expressed in count II of the complaint. The defendant points to
facts in the record which shows that the alleged tortious event has brought the
plaintiffs, a married couple, closer together and has not adversely affected Lisa Brown's
ability, in her opinion, to care for, love, and be a mother for her children. Mark Brown
counters this evidence with an affidavit which simply asserts that he has lost the "care,
comfort, companionship, society, services or affection” of his wife for the six-week
period after she delivered the stillborn child -- an event for which the plaintiffs wish to
hold the defendant accountable.
The defendant cites no authority, and the court can find none, which holds that
such a brief and conclusory declaration of loss is insufficient to create a genuine issue as
to a material fact. M.R. Civ. P. 56(c). Indeed, the facts cited by the defendant, while
more specific, do not rebut or negate the plaintiffs' claim. The fact that the plaintiffs’
marriage has improved or that Lisa Brown's parenting has not been adversely affected
does not mean that Mark Brown did not lose the care, comfort and companionship of
his wife for the six weeks he has claimed. So, while Mark Brown's affidavit may be
“thin,” it is nevertheless sufficient to create a legitimate dispute as to a material fact, his
loss of consortium, so that the defendant is not entitled to summary judgment on this
claim as a matter of law. MLR. Civ. P. 56(c).
The entry will be:
For the reasons stated herein, the defendant's Motion for Partial
Summary Judgment is DENIED.
John R. Atwood
ustice, Superior Court
Dated: September lo , 2001
Date Filed___4/ 24/00 Kennebec Docket No, ___ CV97--284
County
Action Medical Malpractice J ATWOOL
Mark & Lisa Brown __VS._ Jeffrey Lovitz, M.D.
Plaintiff's Attorney Defendant’s Attorney
C. Donald Briggs, III, Esq. ~Daniel Rapaport, Esq. (4/28/00)
247 Commercial Street PO Box 9546
Rockport, Maine 04856-5964 Portland, Maine 04112-9546
-Steven Mogul, Esq. (Childs)
PO BOx 917
Bangor, Maine 04401
Date of
Entry
4/24/00 Complaint, filed. s/Briggs, III, Esq.
Gase File Notice mailed to atty.
4/28/00 Defendant's Answer and Affirmative Defenses, filed s/Rapaport, Esq.
4/28/00 SCHEDULING ORDER, Atwood, J.
"Scheduling Order filed. Discovery deadline is December 28, 2000."
Copies mailed to attys of record.
7/3/00 Entry of Appearance by Steven Mogul, Esq. for Susan Childs, M.D., filed.
8/2/00 Notification of Discovery Service, filed. s/Rapaport, Esq.
Defendant Jeffrey Lovitz, M.D.’s Notice to Take Deposition of Oral Depositi
served on CG. Donald Briggs, Esq. on 8/1/00.
9/8/00 Notification of Discovery Service, filed. s/Rapaport, Esq. .
Defendant Jeffrey Lovitz, M.D.‘s Amended Notice to Take Oral Deposition
served on C. Donald Briggs, III,Esq. on 9/5/00
11/30/00. ORDER: ON MOTION TO EXTEND DISCOVERY, Atwood, J.
The discovery deadline is March 31, 2001.
Copies mailed to attys of record.
4/6/01 Joint Motion to Extend Discovery Deadline, filed. s/Rapaport, Esq.
Proposed Order, filed.
Notification of Discovery Service, filed. s/Rapaport, Esq.
Defendant JEffrey Lovitz, M.D.‘'s Amdned Notices to Take Oral Depositions
served on C. Donald Briggs, III, Esq. on 4/3/01.
4/12/01 ORDER ON MOTION TO EXTEND DISCOVERY, Atwood, J.
Discovery deadline is extended to April 30, 200i.
Copies mailed to attys of record.