Appendix — Globe Newspaper Co. v. Ayash

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APPENDIX A — OPINION OF THE SUPREME

JUDICIAL COURT OF MASSACHUSETTS

DECIDED FEBRUARY 9, 2005

SUPREME JUDICIAL COURT OF

MASSACHUSETTS, SUFFOLK

Argued October 6, 2004

Decided February 9, 2005

Lots J. AYASH

DaNnaA- FARBER CANCER INSTITUTE & others.!

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, SOSMAN,

& Corpy, JJ.

GREANEY, J. The plaintiff, Dr. Lois J. Ayash, commenced this

action in the Superior Court against the defendants, the Dana-

Farber Cancer Institute (Dana-Farber or the hospital);

Dr. David M. Livingston; Globe Newspaper Company, Inc.,

publisher of the Boston Globe (Globe); and Globe reporter

Richard A. Knox, seeking damages in connection with a

series of events that occurred in the aftermath of the discovery

that two patients enrolled in an experimental breast cancer

treatment study at Dana-Farber had mistakenly been

administered a four-fold overdose of a highly toxic

chemotherapy drug. One of the patients, Globe health

1. David M. Livingston, Globe Newspaper Company, Inc., and

Richard A. Knox (the latter two collectively referred to as the Globe

defendants).

Appendix A

columnist Betsy A. Lehman, died as a result of the overdose.

In her complaint, the plaintiff accused the Globe and Knox

(together, Globe defendants) of publishing a series of scathing

and inaccurate articles about the overdoses and an alleged

coverup by Dana-Farber that erroneously attributed

culpability to the plaintiff, thereby destroying her reputation

and her well-being. The plaintiff's complaint also accused

Dana-Farber and Livingston (who was physician-in-chief at

Dana-Farber at the time of the overdoses and their discovery)

of inappropriately focusing public attention on her, by issuing

press releases containing confidential peer review

information and by secretly providing to Knox other

confidential peer review information. This was done, the

plaintiff alleges, in order to deflect attention from widespread

deficiencies in the hospital that led to the overdoses and in

order to protect other physicians at the hospital. The

plaintiff's amended complaint, as far as now relevant, states

claims against (1) Dana-Farber for invasion of privacy, breach

of the implied covenant of good faith and fair dealing, and

unlawful retaliation in violation of G.L. c. 151B, § 4(4)’;

(2) Livingston for intentional interference with contractual

relations; (3) the Globe defendants for libel and defamation’;

2. The plaintiff also asserted a claim against Dana-Farber for

gender discrimination and a claim against Dana-Farber and Livingston

for defamation and libel. The jury returned verdicts in favor of the

defendants on these claims, and the plaintiff does not challenge the

verdicts. The plaintiff also asserted a separate claim against Dana-

Farber for breach of contract that was submitted, with no objection,

to the jury as part of the claim for violation of the implied covenant

of good faith and fair dealing.

3. The plaintiff also asserted a claim against the Globe

(Cont'd)

Appendix A

and (4) Knox for intentional interference with contractual

relations and for intentional or negligent infliction of

emotional distress.

During the discovery stage of the litigation, the plaintiff

sought the identities of sources consulted by Knox before

writing articles, subsequently published in the Globe, that

formed, at least in part, the basis of the plaintiff's lawsuit.

After the Globe defendants’ steadfast refusal to provide

information that would lead to the identities of Knox’s

confidential sources, despite a court order to disclose their

identities, a judgment of civil contempt was entered in the

Superior Court against the Globe defendants. The Appeals

Court vacated the order to disclose and the contempt order,

concluding that the defendants had made “some showing”

that disclosure of Knox’s confidential sources presented a

danger to the free flow of information that was more than

theoretical or speculative. See Ayash v. Dana-Farber Cancer

Inst., 46 Mass.App.Ct. 384 (1999). On remand, the judge

allowed the plaintiff's renewed motion to compel the

Globe defendants to disclose the identities of their

confidential sources. When the Globe defendants continued

to refuse, the judge ultimately entered, as a sanction pursuant

to Mass. R. Civ. P. 37(b)(2), as amended, 390 Mass. 1208

(Cont'd)

defendants for invasion of privacy. The judge granted a motion filed

by the Globe defendants for partial summary judgment dismissing

this claim, and the plaintiff has not appealed from that partial

summary judgment.

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Appendix A

(1984), pretrial default judgments of liability in favor of the

plaintiff on her claims against the Globe defendants.‘

After five weeks of trial (presided over by a different

judge than the judge who had dealt with discovery), a jury in

the Superior Court found Dana-Farber liable for (1) violation

of the plaintiff's statutory right to privacy under G.L. c. 214,

§ 1B; (2) breach of the covenant of good faith and fair dealing

implied in its employment contract with the plaintiff; and

(3) unlawful retaliation in violation of G.L. c. 151B, § 4.

The jury also returned a verdict in favor of the plaintiff on

her claim that Livingston intentionally had interfered with

her employment relationship with Dana-Farber. The jury

awarded damages against Dana-Farber in the amount of

$180,000 for lost compensation and injury to business

reputation, $1,080,000 for emotional distress, and $5,000 in

punitive damages*; the jury also awarded damages against

Livingston in the amount of $120,000 for lost compensation

and injury to business reputation, and $720,000 for emotional

distress. For the plaintiff's defaulted claims against the Globe

defendants, the jury awarded her the sum of $1,680,000

against the Globe (reflecting $240,000 in economic damages

4. The Globe defendants immediately filed notice of an appeal

of the default judgments. A judge in the Superior Court (not the one

who entered the sanction orders) granted the plaintiff's motion to

strike the appeal on the ground that the appeal was not ripe until

after damages had been assessed.

5. Dana-Farber did not appeal from the award of punitive

damages. Also not at issue are almost $400,000 in attorney’s fees

and costs awarded the plaintiff pursuant to her successful G.L. c.

151B claim against Dana-Farber.

Appendix A

and $1,440,000 in emotional distress damages) and $420,000

against Knox (reflecting $60,000 in economic damages and

$360,000 in emotional distress damages).

The judge heard motions filed by Dana-Farber and

Livingston for the entry of judgment notwithstanding the

verdicts; a motion filed by Dana-Farber requesting that the

charitable cap, G.L. c. 231, § 85K, be applied to the judgment

against it; a motion filed by the Globe defendants challenging

the default judgments; and motions for a new trial

(or, alternatively, for remittitur) based on excessive damages

submitted by all of the defendants. The judge upheld the

verdicts against Dana-Farber and Livingston, but agreed that

the charitable cap applied to the damages awarded against

Dana-Farber. The judge declined to revisit the default

judgment (which, as noted, had been entered by another

judge). Finally, the judge concluded that damages awarded

by the jury, although high, were not excessive and denied all

of the defendants’ motions for remittitur. An amended

judgment was entered allowing the plaintiff to recover the

sum of $20,000 (plus costs and interest) from Dana-Farber.

The case is before us on cross appeals. The plaintiff

appeals the judge’s application of the charitable cap. Dana-

Farber appeals the denial of its motion for judgment

notwithstanding the verdicts on the retaliation, privacy and

implied contract claims. Livingston appeals the denial of his

motion for judgment notwithstanding the verdict on the

6. The jury originally awarded damages against Dana-Farber

and Livingston jointly. The judge allowed the unopposed motion of

Dana-Farber and Livingston to correct the judgment of joint liability

to rest against Dana-Farber alone.

Appendix A

intentional interference claim. The Globe defendants appeal

the imposition of the sanction of default judgment against

them. All of the defendants appeal the denial of their motions

for remittitur, or for a new trial, on the issue of excessive

damages. We granted the parties’ applications for direct

appellate review.

For reasons that follow, we vacate the judgments against

Dana-Farber for invasion of privacy and for breach of the

implied covenant of good faith and fair dealing, and against

Livingston for interference with employment relations, and

direct the entry of judgments for Dana-Farber and Livingston

on those claims. We affirm the verdict against Dana-Farber

for the G.L. c. 151B unlawful retaliation claim and conclude

that the charitable cap set forth in G.L. c. 231, § 85K, does

not apply to damage awards for unlawful retaliation under

G.L. c. 151B. We affirm the default judgments, and the

corresponding damage awards, against the Globe defendants.

Vacating the judgments against Dana-Farber for invasion of

privacy and breach of the implied covenant creates a defect

in the damages awarded against Dana-Farber which

necessitates a retrial on damages. Accordingly, we remand

the case to the Superior court for a new trial on the damages

to be awarded against Dana-Farber.

1. We begin with an overview of the facts in the light

most favorable to the plaintiff. See Situation Mgmt Systems,

Inc. v. Malouf, Inc., 430 Mass. 875, 876 (2000);

Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438

(1992). Additional facts will be discussed as they relate to

the parties’ claims of error.

Appendix A

a. The overdoses and the immediate aftermath of their

discovery. In November, 1994, a research fellow at Dana-

Farber, Dr. James Foran, accidentally ordered four-fold

overdoses of cyclophosphamide, a powerful chemotherapy

drug with well known heart toxicity, for two patients in an

experimental protocol’ for breast cancer patients (protocol

94-060) administered under the auspices of Dana-Farber’s

Solid Tumor Autologous Marrow Program (STAMP).* The

plaintiff was protocol chair and principal investigator for

protocol 94-060. The overdoses were separately administered

to two patients, Betsy Lehman and Maureen Bateman, over

the course of four days beginning on November 14 and

November 16, respectively. The attending physician on duty

at the time the orders were written, and the overdose

administered to Lehman, was Dr. Gary N. Schwartz. The

attending physician on duty at the time the overdose was

administered to Bateman was Dr. Anthony Elias, the director

of STAMP. Both patients suffered almost immediate adverse

reactions to the cyclophosphamide treatment. Bateman

survived the overdose but experienced severe cardiac

damage. Lehman died on December 3 as a result of the

overdose. An autopsy failed to uncover the cause of her death.

7. The plaintiff’s complaint describes a protocol as a “formal

research program[ ] which may involve clinical aspects if

experimentation upon human beings is a necessary part of the research

effort.” We understand a protocol to be, in the context of this case,

an experimental treatment plan.

8. The STAMP team at Dana-Farber was comprised of several

physicians (including the plaintiff), pharmacologists, and other

medical care providers.

Appendix A

The plaintiff began a rotation as the attending physician

for Lehman and Bateman on December 1. On the morning

after Lehman’s death, the plaintiff inquired of another

STAMP team physician, Dr. Richardson, whether the correct

chemotherapy dose had been administered to Lehman.

Richardson responded in the affirmative” As protocol chair

and co-director of the STAMP team, the plaintiff informed

the director of protocol administration at Dana-Farber of

Lehman’s death and provided him with pharmacological data

about the blood levels of cyclophosphamide and its

metabolite in Lehman and in other patients participating in

protocol 94-060.'° To the plaintiff, and to other STAMP team

physicians, the data appeared inconclusive. At a meeting

approximately two weeks later, the plaintiff, based on her

earlier conversation with Richardson, informed a group of

STAMP team physicians and members of Dana-Farber’s

pharmacology department that the cyclophosphamide

administered to Lehman had been the correct dosage. During

a medical staff retreat, the plaintiff presented the

pharmacological data and clinical scenario of all four patients

who had undergone protocol 94-060 and stated her view that

Lehman’s death most probably reflected a modulation of

cyclophosphamide. Those present voiced no disagreement.

9. Only later did it become apparent that Richardson understood

the plaintiff to have inquired as to whether Lehman’s potassium level

had been checked. Richardson’s affirmative answer, thus, was

addressed to the question of potassium level and not (as believed by

the plaintiff at the time) to whether the proper dose of

cyclophosphamide had been administered.

10. The plaintiff did not inform him about Bateman’s adverse

reaction at this time.

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Appendix A

It was not until on or about February 8, 1995, that a Dana- rh.

Farber data manager discovered the overdosing errors. The ‘

plaintiff reported the errors to Dana-Farber’s human

protection committee on the following day. The hospital

immediately notified both patients’ families of the tragic error

and suspended all clinical work under protocol 94-060. :

Livingston, as the hospital’s physician-in-chief, began his G

own informal investigation into the incident by inquiring of

other physicians, including Dr. Schwartz and Dr. Foran, as

to their version of events. Livingston, however, did not seek u

the plaintiff's view as to what had occurred.

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Dana-Farber established three committees to investigate is

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the circumstances of the overdoses and the hospital’s aa

subsequent failure to discover them. First, it convened an

internal peer review committee, chaired by Dr. Steven E.

Sallan (Sallan committee),!' to focus on how the overdoses

occurred and to recommend steps to prevent a similar tragedy

in the future. Dana-Farber also appointed an external peer

review committee (Devita committee), headed by Dr. Vincent

T. Devita, a national leader in oncology and former director

of the National Cancer Institute, to review the Sallan

committee report and, ‘if necessary, independently investigate

circumstances leading to the overdose. Finally, an internal

Dana-Farber audit team was established to perform an in-

depth investigation of protocol 94-060 itself.

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11. Sallan held that position until early May, 1995, when his

appointment to serve as Dana-Farber’s physician-in-chief was

announced. At that time, Dr. Frederick P. Li replaced Sallan as head a:

of the committee. Sallan remained a member of the committee. et

10a

Appendix A

On March 22, 1995, Livingston issued two statements.

First, in a statement to hospital staff, he described the

overdose incidents and the steps that had been, or would be,

taken by Dana-Farber in response. Second, in a statement to

the news media, Livingston admitted that the overdoses

resulted from “human error” and announced that Dana-Farber

had “taken additional precautions to ensure that they do not

happen again,” including the establishment of “two internal

review committees and an external review committee” that

had been “asked to examine all issues related to this

situation.” Livingston stated that “once all the facts have been

fully analyzed, and the causes of the errors identified,” Dana-

Farber would “make available to the public the conclusions

and recommendations of the committees.” The next day, two

physicians and three pharmacists were placed on

administrative duty and restricted from clinical practice. The

plaintiff was not one of those whose clinical privileges were

restricted.

b. Reporting of the overdoses by the Globe. The

discovery of the overdoses was of considerable public

interest. Dana-Farber became the subject of intense media

coverage, including that in the Globe.'? On March 23, 1995,

the day after Livingston issued the hospital’s first press

release on the overdoses, the Globe published a front page

article, authored by Knox, entitled “Doctor’s orders killed

12. According to the Globe, it ultimately published almost fifty

articles about or related to the overdoses, systemic safeguards, and,

generally, the quality of health care at hospitals everywhere. Knox

testified at trial that he authored only approximately twenty-seven

of these articles and that only six of the articles mentioned the plaintiff

by name.

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Appendix A

cancer patient.” With respect to. the overdose administered

to Lehman, the article ascribed the erroneous order to a

“physician working as a research fellow,” but noted that

“[flive or six other doctors and nurses countersigned the

mistaken order, including Dr. Lois J. Ayash, leader of the

team.” The plaintiff was the only physician named in the

article as having any connection to the overdose. Moreover,

contrary to what was stated in the article, the plaintiff had

not countersigned the overdose order, nor was she the “leader

of the team.” Despite this error in reporting, no effort was

made by Dana-Farber, or by Livingston, to correct the

impression that the plaintiff shared responsibility for the

overdose error.!?

On March 24, 1995, the Globe published an editorial

concerning the overdoses. The editorial characterized the

overdose error as “so glaring that any first-year medical

student should have spotted it.” The following day, the Globe

published an article written by another Globe columnist, Bella

English. The column did not mention the plaintiff by name,

but described the overdoses as “an appalling series of errors

that would make The Three Stooges look like brain surgeons”

and stated that the incompetence was “nothing less than

criminally negligent homicide.”

When Knox directly questioned Livingston as to whether

the Globe had been correct in naming the plaintiff as a

13. Knox concedes that he was told within four days of

publication that the plaintiff did not countersign the overdose orders.

At trial, Knox attributed this error to his own mistake in reading

medical records provided him by the attorney for Lehman’s estate.

The Globe published a correction on June 4, 1995.

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Appendix A

countersigner of the erroneous order, Livingston chose to

remain silent. Knox interviewed Livingston on March 25.

The next day, a second article written by Knox appeared in

the Globe, entitled “Dana-Farber studies pattern in

overdoses.” The article stated that an internal investigation

conducted by Dana-Farber was “focusing on why two

subsequent patients [in protocol 94-060] got the correct

dosage” and suggested that the overdoses could have been

“noted by someone on the care team and quietly corrected.”

The article went on to quote Livingston as stating that the

question of a possible cover up was “right smack in the bull’s

eye” of Dana-Farber’s investigation. Livingston was quoted

as stating, “It’s right in the target range.”

c. Dana-Farber’ focus on the plaintiff and the Globes

coverage alleging her culpability. Article 6 of Dana-Farber’s

medical staff bylaws contemplate the possibility that

“corrective action” be taken against medical staff members

for due cause, including, among other things, “conduct that

might be inconsistent with or harmful to good patient care

or safety, or conduct which is below the standards of the

Professional Medical Staff or below the standards of [Dana-

Farber].” In a letter to Dr. Barbara E. Bierer, dated March

31, 1995, Livingston requested that corrective action

proceedings be initiated against the plaintiff based on her

failure, as co-director of STAMP, chairperson of protocol

94-060, and the attending physician’* of the two victims, to

explore the possibility of an overdose, either before or after

Lehman’s death. A copy of the letter was sent to the plaintiff,

14. The plaintiff disputed at trial whether she had, in fact, been

attending physician, but agreed to the general accuracy of Livingston’s

letter.

13a

Appendix A

along with a letter assuring her that the proceedings would

be confidential. That same day, Livingston issued a press

release disclosing the initiation of the corrective action

process against two unnamed physicians. Under § 6.14 of

the medical staff bylaws, the pendency and subject matter of

corrective action proceedings are strictly confidential and not

to be disclosed.

The next day, a third article written by Knox appeared

in the Globe, entitled “Dana-Farber probe widens[,] [t]hree

suspended from patient care.” The article stated that, on the

basis of “new evidence,” Dana-Farber “yesterday initiated

disciplinary proceedings against two physicians and one

pharmacist involved in the chemotherapy overdose of two

breast cancer patients, one of whom died.” The April 1 article

did not identify the plaintiff by name. She was at that time,

however, the only member of the STAMP team whose identity

had been revealed to the public.

On May 2, an article appeared in the Globe that did

identify the plaintiff by name. The May 2 article, written by

Knox and entitled “Dana-Farber tests signaled an Overdose,

records show,” stated that, although hospital officials

maintained that the “first inkling of the overdoses did not

come until [two and one-half] months after Lehman’s death,”

some specialists had indicated that laboratory test results

“should have been an early tip-off of the overdoses,” and

suggested the possibility that Lehman could have survived

if the overdoses had been discovered earlier. The article

stated: “Ayash and Foran are the only physicians involved in

the case who have been singled out in an internal disciplinary

process launched last month by Dana-Farber.”

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Appendix A

On April 1, at the same time that corrective action

proceedings against the plaintiff were initiated, Livingston

notified the plaintiff that she was being assigned to

“administrative duty.” The plaintiff continued with the

research and writing portions of her job, but was unable to

see patients in a clinical setting in connection with the

STAMP team. On May 10, a preliminary report documenting

the grounds for corrective action against the plaintiff found

that the plaintiff had been insufficiently vigilant in not

checking the dosing order, but acknowledged that it had not

been the common practice of care at Dana-Farber to do so,

and concluded that there was “no evidence of a cover-up [

Jor willful misconduct on [the plaintiff's] part.” One finding

in the report observed that “[t]here are many who think [the

plaintiff], as Protocol Chairperson, should be held responsible

for the events that have transpired [and] many who feel that

she is the victim of scrutiny for political rather than

substantial reasons.” The author of the report added: “I do

not subscribe to either point of view.” The report stated the

opinion that there was no need for further investigation or

discovery and recommended a written reprimand.'*

On June 30, Dana-Farber’s clinical executive committee

(committee) agreed with the findings and recommendations

of the preliminary corrective action report. The committee

concluded, however, that the recommended sanction should

be downgraded from a written to an oral reprimand. Both

the plaintiff and Livingston were sent a copy of the

15. In early May, Livingston stepped down from his position

as Dana-Farber’s physician-in-chief. He was quoted as saying, “It’s

just the thing to do when you’re the head and tragic events occur.”

15a

Appendix A

committee’s report and given the opportunity to comment.

On July 12, Livingston expressed his opinion of the report

in a strongly worded letter disagreeing with the

recommendation of the committee. In the letter, Livingston

Stated: “Given the gross lack of insight and oversight

exercised by the [plaintiff] of a clinical trial in which two

patients were directly harmed by massive drug overdose, I

question whether an oral reprimand is sufficient Corrective

Action in this case.” On July 20, the plaintiff responded to

Livingston’s charges in a letter to Dana-Farber’s president,

contesting her responsibility for the overdoses and rejecting

any suggestion that early discovery of their occurrence would

have “altered the subsequent clinical course for either

patient.” The plaintiff did not elect to respond directly to the

committee’s report. In August, the conclusions of the

committee were endorsed by the executive committee of

Dana-Farber’s board of trustees (board), which “unanimously

recommended a sanction of oral reprimand.” On August 8,

with this final step of the corrective action proceedings

completed, the plaintiff's clinical restrictions were lifted.

Because the plaintiff had been assigned to administrative

duties when corrective action proceedings began, Dana-

Farber was required to report the plaintiff to the

Massachusetts Board of Registration in Medicine (board of

registration). The fact that the plaintiff had been reported to

the board should have remained confidential until such a time

as the board issued a “statement of allegations.” The board

never issued such a statement, but, after conducting its own

investigation, issued a letter of warning to the plaintiff (which

was not made public) expressing concern over the plaintiff's

failure to investigate the possibility of overdoses despite

strong indications of that possibility.

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Appendix A

The Sallan committee prepared two key documents

entitled: (1) “Synopsis of the Conclusions and

Recommendations of the Internal Peer Review Committee

of the Board of Trustees of the Dana-Farber Cancer Institute”

(synopsis) and (2) “Institute Actions in Response to Synopsis

of the Conclusions and Recommendations of the Internal Peer

Review Committee” (response). Together the documents

outlined the parameters, subject matter, conclusions,

recommendations, investigative process and analysis of the

Sallan committee. In addition, the synopsis contained the

Sallan committee’s conclusions and recommendations with

respect to the plaintiff. Although efforts apparently were made

to limit distribution of the synopsis to appropriate people,

an unidentified “confidential source” (someone who Knox

considered to be a reliable source on matters pertaining to

medicine) provided these documents to Knox in the spring

or summer of 1995.

On October 30, when the Sallan committee’s work was

completed, Dana-Farber issued a press release entitled,

“A special report from the board of trustees and

administration of the Dana-Farber Cancer Institute to its

various constituencies.” The contents of the press release was

a second synopsis of the Sallan committee’s conclusions and

recommendations that had been prepared for release to the

public. The released synopsis contained no names but referred

to the plaintiff as the “[p]rincipal [i]nvestigator” for the

protocol.

On October 31, the contents of the synopsis of the Sallan

committee report appeared in the Globe in an article, written

by Knox, entitled “Dana-Farber Puts Focus on Mistakes in

17a

Appendix A

Overdoses.” The article stated that the synopsis “noted that

the doctor in charge of the team treating the two overdose

victims failed to check the medical records for clues to the

sudden death of one patient .. . and the cardiac collapse of a

second.” The article quoted a Dana-Farber physician as saying

that “[sJhe did not review the charts to make sure there wasn’t

an overdose.... That should have been done.” The article

then quoted the following language from the synopsis:

“The manner in which this physician investigated the

incidents contributed to the delay in detecting the overdoses.”

The article continued: “Dana-Farber revealed that the

physician has been formally reprimanded by a Dana-Farber

disciplinary panel for inadequacies in her initial review of

the overdose incidents. She also was held partially

responsible for ambiguities in the schema, or cover sheet,

that summarized the treatment plan. It led the fellow to

prescribe the four-fold overdose and fooled pharmacists who

checked the medication order. Although the doctor in charge

of the treatment protocol was not named by Dana-Farber,

earlier reports identified her as Dr. Lois Ayash.” The article

named the plaintiff and Foran as the two physicians under

investigation by the board of registration in medicine in

connection with the overdoses. The complete Sallan

committee report was never disclosed to the Globe or released

to the public.

d. Initiation of legal proceedings by the plaintiff and

Dana-Farber’s response. In November, 1995, the plaintiff

filed a charge with the Massachusetts Commission Against

Discrimination (MCAD) alleging that Dana-Farber had

discriminated against her on the basis of her gender in the

terms and conditions of her employment. On February 1,

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Appendix A

1996, the plaintiff removed her discrimination claim from

the MCAD by filing her complaint in the Superior Court,

asserting, among other claims, her claim that she had been

the victim of gender discrimination. The next morning, the

plaintiff was called to a meeting with Sallan (who by that

time had replaced Livingston as Dana-Farber’s physician-

in-chief), Dr. Donald W. Kufe (a STAMP team leader), and

board secretary Kristen Henderson. Sallan opened the

meeting by referring to the lawsuit filed the preceding day

and informed the plaintiff that clinical positions which he

had previously discussed with her as potential assignments

were no longer available to her. Kufe informed the plaintiff

that she would not be permitted to work with another STAMP

team physician who earlier had indicated his willingness to

work with the plaintiff. Sallan suggested that the plaintiff

work at home in order to avoid awkwardness and advised

her to hurry up and finish any manuscripts relating to her

work with STAMP. Sallan also informed the plaintiff that he

would be assigning the protocols of which she was chair,

with the exception of one near completion, to another

physician. The plaintiff testified at trial that “it was clear

that [Sallan] knew we had filed the lawsuit.”

On two earlier occasions, reference was made by the

plaintiff's superiors at Dana-Farber to her lawsuit. Once, in

late September of 1995 (after the plaintiff had retained

counsel but before she had filed her complaint with the

MCAD), Dr. Emil Frei, the principal investigator for the

STAMP project grant, informed the plaintiff that she could

return to the STAMP team immediately, but only on the

condition that she agreed to leave within six to twelve

months. According to the plaintiff, Frei repeatedly mentioned

19a

Appendix A

lawyers or a lawsuit in the conversation and told the plaintiff

that “he would not recommend that [she] proceed with any

legal action because it would hurt her.” In addition, Kufe

once informed her that Dana-Farber would “squash [her] like

a bug.”

On September 6, 1996, Dana-Farber advised the plaintiff

that her employment would not be renewed as of June 30,

1997, the date that her three-year appointment was to expire.

The plaintiff subsequently accepted an offer of employment

in another State. On October 7, 1999, the plaintiff amended

her complaint to assert an additional claim against the

hospital for unlawful retaliatory discharge in violation of G.L.

c. 151B, § 4(4). We now turn to the merits of this appeal.

2. Claims against Dana-Farber. a. Invasion of statutory

right to privacy. General Laws c. 214, § 1B, creates a statutory

right against “unreasonable, substantial or serious”

interference with a person’s privacy. We have stated that,

despite the disjunctive “or,” the phrase “unreasonable,

substantial or serious” is inclusive, as § 1B “obviously was

not intended to prohibit serious or substantial interferences

which are reasonable or justified.” Schlesinger v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 517-

518 (1991). To recover under the statute for dissemination

of private information,'® a plaintiff must establish that the

16. Prosser discusses four types of conduct that may give rise

to a claim of invasion of privacy: (1) appropriation of the plaintiff’s

name or likeness; (2) unreasonable intrusion upon the plaintiff's

seclusion of another; (3) public disclosure of private facts about the

plaintiff (even though the facts are true and no action would lie for

(Cont’d)

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20a

Appendix A

disclosure was both unreasonable and either substantial or

serious. As recognized in the Restatement (Second) of Torts,

“fe]very individual has some phases of his life and his

activities and some facts about himself that he does not

expose to the public eye, but keeps entirely to himself or at

most reveals only to his family or to close personal

friends. ... When these intimate details of his life are spread

before the public gaze in a manner highly offensive to the

ordinary reasonable [person], there is an actionable invasion

of his privacy, unless the matter is one of legitimate public

interest.” Restatement (Second) of Torts § 652D comment b

(1977). “When the subject matter of the publicity is of public

concern, .. . there is no invasion of privacy.” Boston Herald,

Inc. v. Sharpe, 432 Mass. 593, 612 (2000), citing Restatement

(Second) of Torts, supra at comment d.

(Cont'd)

defamation); and (4) publicity which places the plaintiff in a false

light in the public eye. See W.L. Prosser & W.P. Keeton, Torts § 117,

at 851-866 (Sth ed.1984). It is the third type of conduct with which

the majority of our cases under G.L. c. 214, § 1B, have been

concerned. But see Schlesinger v. Merrill Lynch, Pierce, Fenner, &

Smith, Inc., 409 Mass. 514, 519-520 (1991) (suggesting that intrusive

conduct demonstrating pattern of harassment might be actionable);

O'Connor v. Police Comm’r of Boston, 408 Mass. 324, 329-330

(1990) (recognizing that statutory privacy interest may be burdened

by “warrantless, suspicionless, urinalysis testing”). We have not

adopted an interpretation of G.L. c. 214, § 1B, that would give rise

to claim of false light invasion of privacy claim. See ELM Med. Lab.,

Inc. v. RKO Gen., Inc., 403 Mass. 779, 787 (1989); Fox Tree v. Harte-

Hanks Communications, Inc., 398 Mass. 845, 848-849 (1986).

2la

Appendix A

In determining whether there has been a violation of

§ 1B in the employment context, “it is necessary to balance

the employer’s legitimate business interest in obtaining and

publishing the information against the substantiality of the

intrusion on the employee’s privacy resulting from the

disclosure.” Gauthier v. Police Comm’r of Beston, 408 Mass.

335, 338 (1990). There was no invasion of a right to privacy

when a chief of police, acting in his official Capacity,

disclosed information about a plaintiff's fitness to be a police

officer, see Mulgrew v. Taunton, 410 Mass. 631, 637 (1991),

or when a police officer informed cadets of a fellow cadet’s

dismissal for failing a drug test, see Gauthier v. Police

Comm'r of Boston, supra at 338-339. Cf. Cort v. Bristol-

Myers Co., 385 Mass. 300, 306-307 & n. 9 (1982). The

Statute, essentially, proscribes “disclosure of facts about an

individual that are of a highly personal or intimate nature

when there exists no legitimate countervailing interest.” Bratt

v. International Business Mach. Corp., 392 Mass. 508, 518

(1984).

We reject the plaintiff's assertion that release of

information as to “proceedings, reports and records of a

medical peer review committee,” that is statutorily protected

from disclosure by G.L. c. 111, § § 203 and 204 @),

automatically equates to an invasion of privacy as that term

is used in the context of G.L. c. 214, § 1B. General Laws c.

111, § 204, providing for confidentiality of peer review

committee proceedings, was enacted to promote rigorous and

candid evaluation of professional performance by a provider’s

peers. See Beth Israel Hosp. Ass’n v. Board of Registration

in Med., 401 Mass. 172, 182-183 (1987). The statute is

designed to protect the confidentiality of physicians who

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22a

Appendix A

participate in peer review. See Miller v. Milton Hosp. & Med.

Ctr., 54 Mass.App.Ct. 495, 501 (2002) (peer review privilege

“designed to foster a candid exchange of information

regarding the quality of medical care”). The words of the

statute do not create a private right of action for a physician

under investigation to sue for invasion of privacy when

protected peer review information of the type involved here

is, inadvertently or intentionally, released to the public. See

Borucki v. Ryan, 407 Mass. 1009, 1009 (1990).

Despite Dana-Farber’s continued denials that it (or its

agents) leaked any confidential information to Knox, the jury

could have made factual findings that Dana-Farber was

responsible for the public disclosure that peer review action

was proceeding against the plaintiff and that Dana-Farber

also was responsible for providing to Knox confidential peer

review documents (the Sallan committee’s synopsis and

response) that suggested some responsibility on the plaintiffs

part in connection with the overdoses (or an alleged coverup

in the aftermath of their discovery).'’ The plaintiff, who had

17. The jury would be warranted in so concluding,

notwithstanding the fact that the plaintiff vigorously argued to the

judge hearing her motion for sanctions, that without specific

information from the Globe defendants as to the identities of their

confidential sources, she could not successfully demonstrate whether

officials at Dana-Farber had released confidential peer review

information to Knox. (The judge indicated his agreement with that

argument when he imposed the sanction of default judgments against

the Globe defendants.) It is far less certain whether the jury could

have attributed to Dana-Farber responsibility for leaking to the press

information that the plaintiff was under investigation by the board

of registration. It is not disputed that Dana-Farber (through Livingston

(Cont’d)

23a

Appendix A

in no sense been a media figure until that time, was held up

to the public eye in a manner that was exceedingly distressing

to her.

Nevertheless, the disclosures were limited to the

plaintiff's professional involvement in a matter that already

was the focus of a high degree of public scrutiny and interest.

This is a case where the plaintiff (unwillingly) achieved

public figure status by reason of her status as chair and

principal investigator of an experimental research protocol

under which two patients at a prominent research institution

received chemotherapy overdoses. See ELM Med. Lab., Inc.

v. RKO Gen., Inc., 403 Mass. 779, 786 (1989); Jones v. Taibbi,

400 Mass. 786, 801 (1987); Peckham v. Boston Herald, Inc.,

48 Mass.App.Ct. 282, 289 (1999). Accordingly, any

dissemination of information regarding the plaintiff in

connection with the overdoses, including documents which,

under normal circumstances, would not be open to public

inspection, only provided further publicity on a matter that

was already squarely in the public eye. See Restatement

(Second) of Torts, supra at comment b (“no liability [for

invasion of privacy based on publicity given to true

statements] when the defendant merely gives further publicity

to information about the plaintiff that is already public”).

We conclude that the disclosures about the plaintiff’s

professional conduct were part of a matter of intense public

(Cont’d)

as its spokesperson and physician-in-chief) publicly did announce

that corrective action proceedings against two physicians had been

initiated and did issue a press release summarizing, in redacted form,

the findings of the Sallan committee. The plaintiff was not, however,

identified by name in either of these public statements.

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24a

Appendix A

interest and were not, in any event, of an exceedingly personal

or intimate nature, such as matters concerning her health or

her lifestyle, to mention some examples. These considerations

take the claim outside the protection of G.L. c. 214, § 1B.

Although the challenged disclosures were embarrassing, the

plaintiff cannot, as matter of law, establish the elements

required for recovery under the statute.

b. Breach of implied covenant of good faith and fair

dealing. Every contract in Massachusetts is subject, to some

extent, to an implied covenant of good faith and fair dealing.

See Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass.

451, 473 (1991). This implied covenant may not be “invoked

to create rights and duties not otherwise provided for in the

existing contractual relationship,” Uno Restaurants, Inc. v.

Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004),

but rather concerns the manner of performance. It has been

explained that the implied covenant exists so that the

objectives of the contract may be realized. See Crellin

Technologies, Inc. v. Equipmentlease Corp., 18 F.3d 1, 10

(1st Cir.1994). The concept of good faith and fair dealing in

any one context is shaped by the nature of the contractual

relationship from which the implied covenant derives. The

scope of the covenant is only as broad as the contract that

governs tie particular relationship.

In the context of employment, employers (in varying

contexts and subject to strict limitations) have been held

liable for breach of the implied covenant of good faith and

- fair dealing only in circumstances when an at-will employee

has been terminated in bad faith. See King v. Driscoll, 424

Mass. 1, 6 (1996), citing Fortune v. National Cash Register

25a

Appendix A

Co., 373 Mass. 96, 104 (1977); Maddaloni v. Western Mass.

Bus Lines, Inc., 386 Mass. 877, 881 (1982); Gram v. Liberty

Mut. Ins. Co., 384 Mass. 659, 671 (1981), S.C., 391 Mass.

333 (1984). There is no general duty on the part of an

employer to act “nicely.” Accordingly, to the extent that the

plaintiff's claim rests on allegations that Dana-Farber dealt

with her in a manner that was unfair by (to mention a few

examples) withholding from her an autopsy report concluding

that Lehman had suffered serious heart damage as a result of

the overdose, failing to correct the Globe’s initial

misidentification of the plaintiff as a countersigner of the

overdose order, deciding not to disseminate to the public the

actual outcome of the corrective action proceedings

(favorable to her), or generally, in the plaintiff's words,

“singling [her] out ... for ‘scapegoat’ treatment,” the plaintiff

did not present a claim on which she could recover.

The principal thrust of the plaintiffs implied covenant

claim, however, is that Dana-Farber did not follow the

procedure described in its own medical staff bylaws before

restricting her clinical privileges. In the specific context of a

physician-hospital employment relationship, we have

assumed (but not yet decided) that a physician whose staff

privileges have been terminated by a hospital may assert a

claim of breach of the implied covenant of good faith and

fair dealing against the hospital based on its alleged bad faith

failure to follow its own bylaws. See Birbiglia v. St. Vincent

Hosp., Inc., 427 Mass. 80, 84 (1998). See also Katz v.

Children’s Hosp. Corp., 33 Mass.App.Ct. 574, 576 (1992)

(assuming that hospital’s bylaws create contractual rights in

physicians). Such a claim would be premised on the hospital’s

breach of its promise, implicit in the employment

26a

Appendix A

relationship, to abide by its own bylaws in its conduct towards

its. physicians. See Birbiglia v. St. Vincent Hosp., Inc., supra.

Article 6 of the bylaws of the professional medical staff

at Dana-Farber pertain to “corrective actions; adverse

appointment and reappointment decisions; [and a physician’s]

rights of fair hearing.” According to § 6.7 of the bylaws, a

recommended corrective action that a physician’s staff

privileges be revoked, restricted, or modified entitles the

affected physician to a panoply of rights in connection with

a hearing on the matter. In circumstances (as were, apparently,

present here) when a physician’s clinical privileges are

summarily restricted for over fourteen days in the absence

of a recommendation by the corrective action committee,

§ 6.5 of the bylaws provides the affected physician with all

of the rights provided by § 6.7, including a hearing and

written notice of the right to request a hearing.'®

18. Section 6.14 of the bylaws provides that the “proceedings,

reports, records, findings, recommendations, evaluations, opinions,

deliberations or other actions taken pursuant to this [art. 6], and the

identity of and information provided by witnesses or any other

individuals, shall be treated as confidential to the extent permitted

by law and public regulations.” The plaintiff's counsel argued at trial,

in vague fashion (“All the conduct that I described earlier in

connection with sex discrimination and retaliation also constitutes

violation of that covenant”), that Dana-Farber violated the implied

covenant of good faith and fair dealing in its employment relationship

when it, through Livingston or another high ranking hospital official,

released to the Globe internal peer review and other confidential

information regarding the plaintiff, including information that

corrective action proceedings had been initiated against her and that

she had been reported to the board of registration. In her reply brief,

(Cont'd)

27a

Appendix A

It is undisputed that the plaintiff did not receive a hearing

before, or within fourteen days of, being assigned to

administrative duties on March 31, 1995. Nor was the

plaintiff formally notified, in writing, of her right to hearing.

A copy of the bylaws was attached to the letter informing

the plaintiff of the corrective action investigation against her,

and the record suggests that the plaintiff was offered (and

declined) the opportunity to speak before the committee

deciding what, if any, corrective action was appropriate.

Whether the plaintiff was entitled to request a hearing, and

whether she received constructive notice and, thereafter,

waived her entitlement to request a hearing was a matter to

be argued to the jury. Based on their belief in the plaintiff's

version of events, and a reasonable interpretation of the

bylaws, the jury reasonably could have found that Dana-

Farber had violated its own bylaws, and in doing so, violated

the implied covenant of good faith and fair dealing in its

employment contract with the plaintiff.

(Cont’d)

the plaintiff claims that the implied covenant was violated when

Livingston “disclosed to the Globe the [c]orrective [a]ction

proceedings concerning [the plaintiff] and said that the possibility

of a cover-up (for which there was no evidence) was ‘right smack in

the bull’s eye’ of the internal investigation.” We postpone comment

on the assumption, underlying the latter claim, that it was Livingston

who secretly informed Knox of the plaintiff’s identity in connection

with the corrective action proceedings. See note 29, infra. To date,

the plaintiff has not argued the precise point that alleged improper

disclosures on the part of Dana-Farber violated § 6.14 of its bylaws,

and, thereby, constituted a breach of the implied covenant. Any claim

to that effect, therefore, is waived. See Mass. R.A.P. 16(a)(4), as

amended, 367 Mass. 921 (1975). See also Foley v. Lowell Sun Publ.

Co., 404 Mass. 9, 11 (1989).

Se asin mE

28a

Appendix A

Thus, we assume that Dana-Farber violated the implied

covenant of good faith and fair dealing when it restricted the

plaintiff's clinical privileges without first notifying her of

her right to request a hearing. We conclude, nevertheless,

that the judgment entered against Dana-Farber must be

vacated, because the plaintiff has offered no evidence that

she suffered compensable loss as a result of the breach.

As has been stated, the plaintiff's clinical privileges,

restricted in April, 1995, were fully restored in August of

that year, after the committee concluded that an oral

reprimand was the appropriate action to take. Our cases

establish that, in awarding damages for breach of the implied

covenant of good faith and fair dealing, the goal is to

compensate an employee for past services and to deny the

employer “any readily definable, financial windfall” resulting

from the breach. McCone v. New England Tel. & Tel. Co.,

393 Mass. 231, 234 (1984), quoting Gram v. Liberty Mut.

Ins. Co., supra at 335. See King v. Driscoll, supra at 5;

Maddaloni v. Western Mass. Bus Lines, Inc., supra; Fortune

v. National Cash Register Co., supra. Consistent with this

principle, and keeping in mind that the plaintiff received all

sums due her for her employment, Dana-Farber is liable

neither for negative effects on the plaintiff's future career

nor for the plaintiff's emotional distress. The only damages

to which the plaintiff is entitled are for economic losses

suffered as a result of the hospital’s failure to provide written

notice of her right to a hearing. Because the plaintiff has

made no specific showing of such a loss, her allegations fall

short of proving a claim.

c. Retaliation in violation of G.L. c. 151B, § 4(4). Based

on the facts set forth in part 1.d of this opinion, a reasonable

29a

Appendix A

jury could conclude that Dana-Farber’s decision not to renew

the plaintiff's appointment was motivated by retaliatory

animus fueled by the plaintiffs filing of a lawsuit against

Dana-Farber alleging discrimination based on gender.'® The

plaintiff had been forewarned by a STAMP team leader, as

early as September, 1995, that proceeding with any legal

action would “hurt her.” A second STAMP team leader

subsequently informed her that Dana-Farber would “squash

[her] like a bug.” Significantly, the day after the plaintiff

removed her administrative complaint of discrimination to

the Superior Court, she was told that clinical positions

previously available for the upcoming fall were no longer

available and, indeed, that no clinical positions would be

available for the plaintiff. Suggestions that she should work

at home and that she should complete her unfinished STAMP

work could be, in the eyes of the jury, indicators of Dana-

Farber’s intention to punish the plaintiff for asserting her

rights under G.L. c. 151B. Although the plaintiff continued

to work at Dana-Farber for many months after this meeting,

the message, that her employment future at the hospital was

in jeopardy, had been conveyed.

19. We reject Dana-Farber’s contention that it is entitled to

judgment in its favor because of the plaintiffs failure to file her

claim of unlawful retaliation with the MCAD. As is stated above,

the plaintiff already had removed her discrimination claim to the

Superior Court by the time she was notified that her reappointment

would not be forthcoming. She subsequently amended her complaint

to add the charge of retaliation. In these circumstances, she was not

required to return to the MCAD to file a second complaint.

See Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 529

n. 8 (2001), and cases cited.

Rae ee” coe ee ora oan

30a

Appendix A

At trial, Dana-Farber characterized the decision to

eliminate the plaintiff's position as one part of the hospital’s

cost-cutting reduction that included many people who had

not engaged in protected activities under G.L. c. 151B, made

in response to significant reductions in funding, including

the loss of research funding for protocol 94-060. The record

demonstrates that, of all the hospital employees let go as

part of the hospital’s “cost-cutting reductions,” only one other

employee was at the plaintiff's level, and the plaintiff was

the only member of the STAMP team whose appointment

was not renewed. Dana-Farber’s contention that the plaintiff

“did not suffer any adverse employment action in connection

with the alleged retaliation” simply is not persuasive. Clearly,

the jury felt so as well. The plaintiff's evidence easily meets

the standard for proof of causation in retaliation claims under

G.L. c. 151B. See Abramian v. President & Fellows of

Harvard College, 432 Mass. 107, 114 (2000); College-Town,

Div. of Interco, Inc. v. Massachusetts Comm'n Against

Discrimination, 400 Mass. 156, 168 (1987); Carter v.

Commissioner of Correction, 43 Mass.App.Ct. 212, 224

(1997).

d. Charitable cap. The plaintiff claims error in the

judge’s application of the statutory cap under G.L. c. 231,

§ 85K, limiting the tort liability of a charitable entity at

$20,000, to Dana-Farber’s liability.

The question whether unlawful retaliatory conduct in the

employment context falls within the scope of § 85 to shield

charitable institutions from the full effects of liability

under G.L. c. 151B has never been addressed by this court.

In Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1,

31a

Appendix A

27- 28, cert. denied, 522 U.S. 1015 (1997), we held that

§ 85K does not apply to damages awarded under G.L. c. 93A

because that statute created “broad new rights, forbidding

conduct not previously unlawful under the common law of

contract and tort or under any prior statute.” We used the

same reasoning in Birbiglia v. Saint Vincent Hosp., Inc., 427

Mass. 80, 88 (1998), to hold that § 85K did not apply to a

claim that a hospital violated G.L. c. 272, § 99 Q, the

Massachusetts wiretapping statute. The United States Court

of Appeals for the First Circuit has held that § 85K does not

limit damages awarded under G.L. c. 151B. See McMillan.

Massachusetts Soc’y for the Prevention of Cruelty to Animais,

140 F.3d 288, 307 (ist Cir.1998), cert. denied, 525 U.S. 1104

(1999). Following the reasoning of the Linkage case, the First

Circuit concluded that G.L. c. 151B, like G.L. c. 93A, created

rights that did not exist under the common law and, thus,

claims under G.L. c. 151B were not to be considered “torts”

for purposes of § 85K. See id. We agree and now hold that

§ 85K does not apply to limit damages awarded pursuant to

a successful claim of unlawful retaliation under G.L. c.

151B.7°

20. Our position is consistent with our interpretation of GL. c.

258, § 2, the Massachusetts Tort Claims Act (Act), limiting liability

of public employers for a “negligent or wrongful act or omission of

any public employee acting within the scope of his office of

employment” to $100,000. See Jancey v. School Comm. of Everett,

421 Mass. 482, 501 (1995),S.C., 427 Mass. 603 (1998). InJancey,

this court held that the Act does not apply to an employee’s wage

discrimination claim because “even though wage discrimination ‘has

historical connections to common law tort and contract claims,’ Dalis

v. Buyer Advertising, Inc., 418 Mass. 220, 226 (1994), acts of

discrimination—whether intentional or unintentional—do not thereby

(Cont'd)

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32a

Appendix A

Our holding finds substantial support in the legislative

history, as well as the plain language, of both statutes. Up

until the time that G.L. c. 231, § 85K, was enacted in 1971, a

nonprofit hospital, such as Dana-Farber, enjoyed charitable

immunity from tort liability. The statute abolished the defense

of charitable immunity to “any cause of action based on tort”

brought against a charitable corporation, but imposed a

mandatory $20,000 limit on liability “if the tort was

committed in the course of any activity carried on to

accomplish directly the charitable purposes of such

corporation.” The purpose behind the charitable cap was “to

protect the funds [and other assets] of charitable institutions

so they may be devoted to charitable purposes.” English v.

New England Med. Ctr., Inc., 405 Mass. 423, 429, cert.

denied, 493 U.S. 1056 (1990). We have enforced the cap as

a “legislatively mandated limit on the amount of civil

damages that can be recovered from a charitable corporation

that causes harm by committing a tort in the performance of

its charitable purpose, no matter how compelling the

circumstances of the injured party.” Keene v. Brigham &

Women’s Hosp., Inc., 439 Mass. 223, 239 (2003). The plain

language of the statute, however, could not be clearer. Section

85K applies only in limited circumstances where damages

flow from a tort “committed in the course of any activity

carried on to accomplish directly [a defendant’s] charitable

purposes.” The charitable cap does not apply to most statutory

(Cont’d)

become torts.” /d., citing Whitney v. Worcester, 373 Mass. 208, 216

n. 10 (1977) (“The inquiry into governmental tort liability in a

particular case must begin with a determination whether the conduct

in question was in fact tortious”).

33a

Appendix A

violations, unless there is a “tort” within the meaning of the

statute.?!

We have, admittedly, referred frequently to tort-like

aspects of claims of discrimination under G.L. c. 151B. See,

e.g., Stonehill College v. Massachusetts Comm’n Against

Discrimination, 441 Mass. 549, 559-560, cert. denied, 125

S.Ct. 481 (2004); Thomas v. EDI Specialists, Inc., 437 Mass.

536, 539 (2002); Dalis v. Buyer Advertising, Inc., 418 Mass.

220, 223 (1994); Conway v. Electro Switch Corp., 402 Mass.

385, 387 (1988). It cannot be said, however, that claims

arising under G.L. c. 151B are causes of action in tort. Chapter

151B is a comprehensive statute enacted to provide judicial

and administrative remedies for destructive acts of

discrimination in the workplace. When the statute was

originally enacted, the Legislature specifically exempted

charitable organizations from the category of “employers”

who could be liable for G.L. c. 151B violations. The remedies

provision contained in § 9 expressly states that it should be

“construed liberally for the accomplishment of’ the purposes

of G.L. c. 151B and that “any law inconsistent with any

provision [of G.L. c. 151B] shall not apply.” In 1969, the

Legislature removed G.L. c. 151B’s charitable exemption and

made charitable organizations “employers” subject to the

same provisions and remedies as other employers for claims

brought under that chapter. G.L. c. 151B, § 1(5), inserted by

St. 1969, c. 216. Section 4(4) of G.L. c. 151B, thus, made it

21. Because we conclude that a violation of G.L. c. 151B is not

a tort for purposes of G.L. c. 231, § 85K, we need not consider the

statute’s requirement that the tortious conduct complained of be

committed within the scope of a defendant corporation’s charitable

purpose.

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34a

Appendix A

unlawful for a hospital employer, such as Dana-Farber, to

“discharge, expel or otherwise discriminate against any

person” because that person filed a complaint with the

MCAD, two years before G.L. c. 231, § 85K, abolished

charitable immunity as to causes of action “based on tort”

but imposed the charitable cap on recovery “if the tort was

committed in the course of any activity carried on to

accomplish directly the charitable purposes of the

corporation.” A fair reading of both statutes does not support

the extension of the charitable cap to damages awarded for

successful claims under G.L. c. 151B.??

e. Damages as a whole. This conclusion, coupled with

our determinations, set forth in parts 2.a and 2.b of this

opinion, that the verdicts against Dana-Farber for invasion

of privacy and violation of the implied covenant must be

vacated, leads us inevitably to conclude that there must be a

new trial on damages to be assessed against Dana-Farber on

the retaliation claim. The jury returned a special verdict as

to each count but, despite requests by Dana-Farber, the jury

was not asked to assess damages separately for each claim.

The judge repeatedly instructed the jury that damages could

not be duplicative (that caution was written on the verdict

slip as well). In a written order on post-trial motions,

however, the judge observed that “at all times it was assumed

that the damages for all three causes of action [against Dana-

Farber] were the same and that the claims were simply

alternative forms of pleading based on the same set of facts.”

The plaintiff appears to concede the truth of the judge’s

22. The question is not one, as argued by Dana-Farber, that

may be addressed on a case-by-case basis.

35a

Appendix A

observation. On this record it is impossible to ascertain the

amount of damages the jury assessed for the retaliation

claim.”’ In such a situation, with the damages on three claims

(two of which are invalid, one of which is sound) awarded

in an undifferentiated lump sum, there must be a new trial

on damages.

3. Claim against Livingston. The jury found in the

plaintiff's favor on her claim that Livingston wrongfully

induced Dana-Farber not to extend her employment

relationship. The plaintiff asserts that it was Livingston alone

who conducted his own investigation into the overdose

without asking the plaintiff her version of events or whether

she had checked the chemotherapy dose administered to

Lehman; failed to correct Knox’s misidentification of the

plaintiff as a countersigner of the overdose orders and

confirmed to Knox that Dana-Farber was investigating a

possible cover-up; initiated a corrective action investigation

of the plaintiff's performance, but failed to notify her of the

matter until after he had issued a press release on the subject;

summarily assigned the plaintiff to research and

administrative duties during the investigation; and sent a

23. At the time of the filing of her original complaint, the

plaintiff already claimed that she had suffered damages as a result of

the alleged invasion of privacy and breach of the covenant of good

faith and fair dealing on the part of Dana-Farber. The retaliation claim,

and any damages resulting from that retaliation, necessarily relate

only to discrete events that occurred at the end of the sequence of

events outlined at trial. The total damages awarded comprised

damages flowing from the entire scenario, and, lacking any

itemization from the jury, it is impossible to identify how much of

that total is attributable to the acts of retaliation.

a Sis ata epi 7 “~

36a

Appendix A

strongly worded letter to the committee, expressing his view

that an oral reprimand of the plaintiff was insufficient.

Livingston argues that the judgment entered against him is

contrary to law. He asserts that, as Dana-Farber’s physician-

in-chief, he did “exactly what he should have done” and,

moreover, would have been “seriously remiss” if he had failed

to seek a peer review investigation of the plaintiff's

performance and voice his opinion that an oral reprimand

was insufficient. According to Livingston, “[iJt is a travesty

of justice for [him] to be held liable because he did not shy

away from his professional obligation to seek a peer review

investigation of the plaintiff's failure to check for the

possibility of overdoses.”

We first address the threshold question of Livingston’s

immunity under State law.** General Laws c. 111, § 203 @),

directs that the bylaws of every licensed or public hospital,

and the bylaws of all medical staffs, contain procedures

whereby allegediy incompetent conduct, that could be

harmful to patient care, shall be reported, investigated,

reviewed, and resolved. Section 203 (c), in turn, provides

that an individual or institution providing information,

opinion, counsel or services to, or participating in, a medical

24. We decline to address Livingston’s parallel claim of

immunity under the so-called Health Care Quality Improvement Act

of 1986 (HCQIA), 42 U.S.C. § § 11101 et seq. (1994), made in his

brief, because we deem it waived. Although Livingston did cite the

HCQIA in an earlier memorandum in this case submitted, jointly

with Dana-Farber, in connection with a motion for a protective order,

the citation was offered in an entirely different context, namely, in

support of an argument that the protection afforded to peer review

documents under the HCQIA had not heretofore been waived.

37a

Appendix A

peer review committee “shall not be liable in a suit for

damages by reason of having furnished such information,

opinion, counsel or services or by reason of such

participation.” The statutory protection, however, only

extends to individuals who “acted in good faith and with a

reasonable belief that said actions were warranted in

connection with or in furtherance of the function of said

committee or the procedures required by this section.”

G.L. c. 111, § 203 ©). The statute, thus, protects a physician

who, in good faith, provides information or an opinion against

someone else in the professional context of peer review

proceedings from thereafter being held liable in tort based

on that participation. It follows that the medical peer review

privilege does not extend to physicians who participate in

bad faith.

It is precisely allegations of Livingston’s bad faith that

are at the heart of the plaintiff's intentional interference claim.

As the judge instructed the jury, the specific elements which

must be proved in order to establish a claim of intentional

interference with an employment relationship are (1) an

advantageous employment relationship; (2) the defendant's

knowledge of such relationship; (3) the defendant’s

interference, in addition to being intentional, was improper

in motive or means; and (4) the plaintiff suffered economic

harm as a result of the defendant’s conduct. See Wright v.

Shriners Hosp. for Crippled Children, 412 Mass. 469, 476

(1992), citing G.S. Enters., Inc. v. Falmouth Marine, Inc.,

410 Mass. 262, 272 (1991); Comey v. Hill, 387 Mass. 11, 19

(1982).

38a

Appendix A

We focus on the requirement that the intentiona'

interference be “improper in motive or means.” We have

observed with respect to this requirement that the propriety

of an actor’s motives, or conduct, in a particular setting

necessarily depends on the attending circumstances, and must

be evaluated on a case-by-case basis. See G.S. Enters., Inc.

v. Falmouth Marine, Inc., supra at 273. In addressing the

issue of an employee claiming a supervisor intentionally

interfered with the employee’s advantageous relationship

with the employer, we stated that an employee’s supervisor

is “privileged to act as he did unless he acted out of

malevolence, that is, with ‘actual’ malice.” See Boothby v.

Texon, Inc., 414 Mass. 468, 487 (1993), quoting Gram v.

Liberty Mut. Ins. Co., 384 Mass. 659, 663 (1981). In Wright

v. Shriners Hosp. for Crippled Children, supra, a hospital’s

assistant director of nursing was fired, ostensibly, in

retaliation for having pointed out, to a visiting survey team,

certain problems at the hospital relating to communication

and patient care. We held in Wright that the hospital

administrator had a right to fire the plaintiff unless he did so

“malevolently, 1.e., for a spiteful malignant purpose unrelated

to the legitimate corporate interest.” Jd. at 476, quoting Sereni

v. Star Sportswear Mfg. Corp., 24 Mass.App.Ct. 428, 432-

433 (1987).

25. As the alleged events underlying the plaintiff’s claim

unfolded, Livingston resigned as Dana-Farber’s physician in chief.

See note 15, supra. Livingston arguably would no longer have been

deemed the plaintiff's superior at the hospital, for example, at the

time he wrote his July 12, 1995, letter regarding the recommendation

of the committee. We discount any suggestion that the change in

Livingston’s employment position at Dana-Farber is relevant to our

resolution of the claim.

39a

Appendix A

We need not decide whether the evidence presented by

the plaintiff at trial, reviewed under the proper standard, see

Boothby v. Texon, Inc., supra at 470, was sufficient to support

a finding that Livingston’s challenged conduct was

malevolent, or that he acted out of spiteful malignant

purpose.?* Livingston argues that the verdict against him was

tainted by the improper admission in evidence of confidential

peer review documents. We agree.

We have discussed the statutory mandate set forth in

G.L. c. 111, § 203 (a), that bylaws of hospitals and their

medical staffs contain procedures for medical peer review

proceedings, and the provisions of immunity from tort

liability set forth in § 203 (c) for those who participate in

such proceedings in good faith. Subsequent sections of

G.L. c. 111 address a related aspect of medical peer review

proceedings, namely, the treatment of documents and records

generated in the medical peer review context. Section 204

(a ) directs that proceedings, records, and findings of medical

peer review committees “shall be confidential and .. . shall

not be subject to subpoena or discovery, or introduced into

evidence” and “no person who was in attendance at a meeting

of a medical peer review committee shall be permitted or

required to testify in any .. . judicial or administrative

proceeding [except those of the boards of registration, social

work, or psychology].””? “The medical profession has

26. Evidence warranting such a finding would, presumably, also

suffice to satisfy the bad faith exception to the statutory immunity

for any expressions of opinion or conduct on Livingston’s part that

fell within the scope of G.L. c. 111, § 203 (c).

27. General Laws c. lll, §§ 204 (6) and (c), define

(Cont'd)

40a

Appendix A

historically regulated itself through internal hospital

disciplinary proceedings designed to identify and remedy

instances of substandard care.” Carr v. Howard, 426 Mass.

514, 517 (1998). In 1986, the Legislature enacted G.L. c.

111, § § 203 and 204, St.1986, c. 351, § 9, to bolster the

effectiveness of medical peer review by providing a “measure

of confidentiality to the work of medical peer review

committees.” Jd. at 518. See Beth Israel Hosp. Ass’n v. Board

of Registration in Med., 401 Mass. 172, 182-183 (1987)

(statutory privilege of confidentiality “designed to foster

aggressive critiquing of medical care”). Physicians would

be far less willing candidly to report, testify about, and

investigate concerns of patient safety if their actions would

be subject to later scrutiny and possible litigation.

At every stage of the case, Dana-Farber and Livingston

sought unsuccessfully to protect the confidentiality of peer

review proceedings that gave rise to the plaintiffs claims.

First, Dana-Farber and Livingston filed an emergency motion

to impound the case file. Their motion was denied by a judge,

and the denial was affirmed by a single justice of the Appeals

Court. Next, Dana-Farber and Livingston moved for a

protective order to bar discovery of confidential medical peer

review proceedings, reports, and other hospital records. [hat

motion was denied, by the same judge, without prejudice,

and the denial was affirmed by a single justice of the Appeals

Court. Dana-Farber and Livingston filed a petition for

(Cont’d)

circumstances under, and the extent to, which peer review documents

may be disclosed and peor review committee witnesses and members

may be questioned concerning peer review activities. None are present

here.

4la

Appendix A

relief from the judge’s denial of their motion, pursuant to

G.L. c. 211, § 3, with a single justice of this court, who

declined to intervene. On its renewal later in the case, the

motion for a protective order again was denied, this time on

the grounds that Dana-Farber had waived the confidentiality

provisions of G.L. c. 111, § 204, when it shared the documents

with the plaintiff. 2°

The plaintiff's claim of intentional interference against

Livingston centered on the role he played in the corrective

action proceedings. This role was memorialized in two letters

written by Livingston: (1) his March 31, 1995, letter

requesting that corrective action proceedings be initiated

against the plaintiff in order to “evaluate [the plaintiff's]

28. This determination was incorrect. That Dana-Farber chose

to share certain peer review documents with the plaintiff cannot

constitute a waiver of the statutory bar against their use at trial against

Livingston. See Miller v. Milton Hosp. & Med. Ctr., Inc., 54

Mass.App.Ct. 495, 501 (2002). “The peer review privilege does not

rest on its threshold confidentiality as between the parties to the

litigation [as does, for example, the attorney-client privilege], but

instead is designed to foster a candid exchange of information

regarding the quality of medical care.” Jd. See Commonwealth v.

Choate-Symmes Health Servs., 406 Mass. 27, 28-29 (1989) (narrowly

construing exception to statutory language barring procurement of

peer review committee records for use in judicial or administrative

proceedings). In our view, applying waiver principles to peer review

communications would significantly undermine the effectiveness of

the statute. Physicians could hardly be expected to volunteer

information, or express honest opinions, if the confidentiality of their

comments could be waived after the peer review process were

completed, and, as here, their participation used as evidence in a

lawsuit against them.

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42a

Appendix A

clinical competence, judgment and sense of responsibility

to her patients and colleagues;” and (2) his subsequent letter,

dated July 12, 1995, regarding the recommendation of the

committee, in which he expressed his view that an oral

reprimand was an insufficient response for the plaintiff's

“gross lack of insight and oversight.” Dana-Farber and

Livingston moved to bar the plaintiff from introducing all

documents in connection with the corrective action

proceedings at trial. Deferring to the prior rulings of the

motion judge, the trial judge denied this motion. During the

trial, both letters were admitted in evidence over Dana-

Farber’s and Livingston’s continuing objections.

As conceded by the plaintiff, in her original complaint

and again in her amended complaint, both the corrective

action proceedings and the Sallan committee proceedings

were confidential peer review proceedings protected by

G.L. c. 111, § 204. It follows that the “proceedings, reports

and records” of both committees fell within § 204 (@)’s

protection from “subpoena or discovery, or introduc[tion]

into evidence.” The scope of the language “proceedings,

reports and records” is defined expansively in G.L. c. 111,

§ 205 (5), which provides that “[i]nformation and records

.. . Which are necessary to the work product of medical peer

review committees ... shall be deemed to be proceedings,

reports or records of a medical peer review committee for

purposes of [§ 204].”

We reject the plaintiff's contention that Livingston’s

July 12 letter regarding the recommendation of the committee

fell outside of the scope of the corrective action proceeding

and, thus, does not constitute privileged peer review. As has

43a

Appendix A

been stated, art. 6 of Dana-Farber’s medical staff bylaws set

forth the procedures for corrective action, or medical peer

review, proceedings. Section 6.4.4 of the bylaws expressly

provides that the initiator of a request for corrective action

(here, Livingstun) is entitled to respond, in writing, to a

recommendation by the committee of a corrective action that

does not require a hearing (as here, when the committee

recommended only an oral reprimand), and the board, in its

discretion, may consider any new or additional information

provided in such a response. We conclude that the letter

containing the initiator’s response to the committee’s

preliminary recommendation, as well as the actual letter

initiating the peer review proceedings, both were submitted

as part of the peer review process provided for in Dana-

Farber’s medical staff bylaws, and are the type of documents

that are “necessary to the work product of medical peer

review committees.” Carr v. Howard, supra at 531

(applicability of § 204 to particular documents may be

determined from purpose and process from which it

emerged). The admission of the letters was error.

Without the letters, the plaintiff's evidence against

Livingston generally concerned his failure to inquire into the

plaintiff's version of events in the days following the

discovery of the overdoses; his decision to assign the plaintiff

to “administrative duty,” thereby suspending her clinical

privileges, and thereby causing her to be reported to the board

of registration; and his failure to support the plaintiff when

she was publicly maligned in the Globe? That evidence may

29. The plaintiff alleges that Livingston may have been Knox’s

“confidential source” at Dana-Farber who had supplied her name in

(Cont’d)

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44a

Appendix A

have warranted findings that Livingston’s attention was

inordinately focused on the plaintiff's culpability. It clearly

would not have warranted, however, an inference that the

misplaced focus was deliberate, or motivated by a “spiteful,

malignant purpose” to hurt the plaintiff that was unrelated

to his professional responsibilities. His apparent motive was

to seek out any perceived wrongdoers. See United Truck

Leasing Corp. v. Geltman, 406 Mass. 811, 817 (1990). We

conclude that the plaintiff's allegations of Livingston’s bad

faith cannot support a jury finding against him under the

standard stated in Wright v. Shriners Hosp. for Crippled

Children, 412 Mass. 469, 476 (1992). See Gram v. Liberty

Mut. Ins. Co., 384 Mass. 659, 664 (1981), S.C., 391 Mass.

333 (1984) (“The line between a proper inference and

unwarranted conjecture is not easily drawn. The answer

depends on the evidence in each case and on what the trier

of fact may reasonably infer from that evidence”).

4. Counts against the Globe defendants. As was

explained at the outset of this opinion, during the discovery

stage of the litigation, the plaintiff sought to compel the Globe

defendants to reveal the identities of sources consulted before

publishing the series of articles that formed, in large part,

(Cont’d)

connection with the announced corrective action proceedings, or who

had passed Knox a copy of the hospital’s highly confidential Sallan

committee synopsis. The plaintiff also suggests that Livingston may

have secretly provided to the board of registration a copy of his July

12 letter responding to the committee’s corrective action

recommendations. These allegations are without support in the record

and far too speculative to form a basis for a finding of improper

motive.

45a

Appendix A

the basis of the plaintiffs libel and privacy claims against

Dana-Farber and the Globe defendants. Specifically, the

plaintiff sought the identities of Knox’s sources who

disclosed (1) that the plaintiff was the subject of a Dana-

Farber internal “corrective action” investigation; (2) that the

plaintiff was the subject of an investigation by the board;

and (3) information contained in the synopsis of the Sallan

committee and Dana-Farber’s response. The plaintiff also

sought the identity of the person, or persons, who informed

Knox of his mistake in naming the plaintiff as a countersigner

of the overdose orders. The judge concluded that the identities

of Knox’s confidential sources were central to the plaintiff's

libel claims against the Globe defendants and against Dana-

Farber and her intentional infliction of emotional distress

claims against Knox. Accordingly, the judge denied the Globe

defendants’ motion for a protective order and granted the

plaintiff's motion to compel.*° On the Globe defendants’

refusal to comply with the discovery order, the judge entered

a judgment of civil contempt against the Globe defendants

and imposed, as a monetary sanction, a series of escalating

fines.

The Appeals Court vacated the judgment and remanded

the case to the Superior Court for findings and conclusions

that would justify the entry of sanctions.*' See Ayash v. Dana-

30. The Globe defendants petitioned for interlocutory reliet of

the disclosure order, pursuant to G.L. c. 231, § 118, first par., from a

single justice of the Appeals Court, who denied the petition.

31. By the time the Appeals Court heard the case, the Globe

defendants had been granted partial summary judgment on the

plaintiff's privacy claim against them.

46a

Appendix A

Farber Cancer Inst., 46 Mass.App.Ct. 384, 392- 393 (1999).

On remand, the plaintiff renewed her motion to compel the

disclosure of confidential sources. One confidential source

(a physician who had alerted Knox to his misidentification

of the plaintiff as the overdose order countersigner) had by

this time come forward, and the plaintiff no longer needed

to know that person’s identity in order to pursue her libel

claims. The plaintiff argued, however, that the identities of

other confidential sources were necessary in order to pursue

her claims against Knox for intentional infliction of

emotional distress and against Dana-Farber for invasion of

privacy and for breach of the implied covenant of good faith

and fair dealing. The judge (the same who had issued the

vacated orders) performed the appropriate balancing test and

determined that the plaintiff's need for the information in

order to pursue her claims against Knox and Dana-Farber

was “tangible and substantial and outweigh[ed] the public

interest in protecting the free flow of information.” See

Sinnott v. Boston Retirement Bd., 402 Mass. 581, 586-587,

cert. denied, 488 U.S. 980 (1988). Accordingly, the judge

granted the plaintiff's renewed motion to compel the Globe

defendants to disclose the identifies of their confidential

sources. An order to disclose was entered on October 21,

1999. When the Globe defendants continued to refuse to

reveal the purported “confidential sources,” or any

information which would lead to their identities, the plaintiff

filed a motion to compel Knox to answer one interrogatory.

The judge allowed the motion and ordered Knox to answer

the interrogatory, by or before June 10, 2000. This second

order was entered on June 13, 2000. Knox (together with his

Globe editor) still refused to reveal his sources.

47a

Appendix A

The plaintiff filed a motion for the imposition of

sanctions pursuant to Mass. R. Civ. P. 37(b)(2), as amended,

390 Mass. 1208 (1984). The judge allowed the plaintiff's

motion and ordered, as a sanction pursuant to rule 37(b)(2),

that judgments of liability enter in favor of the plaintiff on

all of her remaining claims against the Globe defendants. *?

a. Merits of the sanction. We review the imposition of

sanctions under the well-established abuse of discretion

standard. See Keene v. Brigham & Women’s Hosp., Inc., 439

Mass. 223, 235 (2003); Roxse Homes Ltd. Partnership v.

Roxse Homes, Inc., 399 Mass. 401, 404 (1987); Riley v.

Davison Constr. Co., 381 Mass. 432, 441 (1980).

In his written memorandum and order, the judge found

that the Globe defendants’ ongoing refusal to comply with

the October 21, 1999, and June 13, 2000, discovery orders

constituted a contempt, as well as a violation of the court’s

orders, and that the Globe defendants’ conduct fell within

the scope of rule 37(b)(2). The judge reasoned that the earlier

order of contempt and imposition of monetary sanctions had

not succeeded in securing the Globe defendants’ compliance

with the discovery orders and, as a result, the alternate

authorized sanction of default judgment was warranted. The

judge noted that the noncompliance of the Globe defendants

had inflicted an “injustice” on the plaintiff's right to discovery

in her case against Dana-Farber and Livingston. The judge

32. The judge also ordered, as a sanction pursuant to Mass. R.

Civ. P. 37(b)(2), as amended, 390 Mass. 1208 (1984), that the Globe

defendants pay reasonable attorney’s fees and costs incurred by the

plaintiff because of the Globe defendants’ failure to comply with the

October 21, 1999, and the June 13, 2000, orders.

48a

Appendix A

stated his view that the imposition of a default judgment, by

itself, would not adequately serve “[t]he interests of justice”

because the Globe defendants’ refusal to disclose may also

“effectively protect [Dana-Farber] and ... Livingston from

liability in this action,” thus constituting an “ongoing, but

imminently avoidable, harm” to the plaintiff. The judge

characterized the Globe’s conduct a “unilateral[ ] and

unnecessar[y] interupt[ion to] the free flow of information

that may be critical to [the plaintiff.] It is ironic that the Globe

defendants’ conduct may serve to effectuate the interests of

the very hospital, as well as the hospital’s former chief

executive, where the Boston Globe’s own reporter was treated

and died. It is not a legacy of which the Globe defendants

should be proud.” The judge’s order was within his discretion.

At the time of the judge’s ruling, the overdose incidents

had occurred over six years previously. There is nothing in

the record to suggest that Knox continued to receive or collect

information pertaining to the overdoses from these sources

that would justify the continued concealment of their

identities. The judge concluded that their identities, and

information that they potentially could reveal, bore directly

on the plaintiff's claims against Knox and Dana-Farber.

Given the current posture of the case, including the jury’s

verdict in favor of Dana-Farber and Livingston on the libel

claim and our conclusions that the plaintiff's evidence did

not support claims against Dana-Farber for invasion of

privacy, see part 2.a and note 17, supra, or against Livingston

for intentional interference, see part 3, supra, it might be

tempting to take issue with the judge’s apparent view of the

strength of the plaintiff's need to know the identities of

Knox’s sources, and, with the clarity granted by hindsight,

49a

Appendix A

express our opinion that the identities of any confidential

sources were, in the end, peripheral at best to the plaintiff's

case. We decline to do so.

At the heart of the plaintiff's case were her intertwined

assertions that officials at Dana-Farber were intentionally

“scapegoating” the plaintiff, at the same time that the Globe

and Knox were intentionally “spotlighting” her for public

censure. The plaintiff had the right to know whether it had

been an agent of Dana-Farber (or, possibly, Livingston

himself) who had divulged confidential information to the

Globe, as well as the full extent of connections between Knox

and officials at Dana-Farber. As a result of the Globe

defendants’ refusals to comply with the discovery orders, the

plaintiff lost her opportunity to proceed against the

defendants on a theory of joint and several liability.

Knowledge of who (if anyone) at Dana-Farber had spoken

to Knox, and exactly what had been said, could have allowed

the plaintiff to bolster her asserted claims or to add new ones.

Over a period of years, the judge had ordered the Globe

defendants to comply with the plaintiff's requests for

discovery of this information, to no avail. The Globe

defendants made a deliberate choice to protect Knox’s

sources and to forgo their (potentially meritorious) defenses

to the claims asserted against them rather than obey the

judge’s orders.* The judge was not trying to punish the Globe

33. This is clearly not a case where the Globe defendants were

unable to comply with the orders. We do not suggest that their refusals

to obey the discovery orders were in bad faith. Despite their assertions

to the contrary, however, the Globe defendants had no special

(Cont'd)

50a

Appendix A

defendants. He clearly felt that he had no alternative method

of enabling the plaintiff to obtain the information she needed,

and he left open to the Globe the option to remove the default

by complying. The question for our review is whether the

judge’s order constituted an abuse of the “broad measure of

discretion” afforded him. See Sinnott v. Boston Retirement

(Cont’d)

constitutional or statutory testimonial privilege, based on their status

as a newspaper publisher or reporter, that would justify their refusal

to obey the orders. See Jn the Matter of John Doe Grand Jury

Investigation, 410 Mass. 596, 598 (1991) (Doe ); In the Matter of

Roche, 381 Mass. 624, 636, citing Herbert v. Lando, 441 U.S. 153

(1979) (Powell, J., concurring). We have recognized that values

underlying the First Amendment to the United States Constitution

and art. .“ of the Amendments to the Massachusetts Constitution

may give rise .0 a common-law privilege that would allow a news

reporter to refuse to reveal his sources. See Petition for the

Promulgation of Rules Regarding the Protection of Confidential News

Sources & Other Unpublished Information, 395 Mass. 164, 172

(1985) (Petition ). In deference to the effect that compelled discovery

has on free speech, and to avoid the “needless disclosure of

confidential relationships,” Jn the Matter of Roche, supra at 637,

our cases require a judge ruling on discovery requests, on a showing

that “the asserted damage to the free flow of information is more

than speculative or theoretical,” to conduct a balancing test between

“the public interest in every person’s evidence and the public interest

in protecting the free flow of information.” Petition at 172. See Doe,

supra; Sinnott v. Boston Retirement Bd., 402 Mass. 581, 586, cert.

denied, 488 U.S. 980 (1988). As has been stated above, the judge

carefully performed that balancing test and properly concluded that,

in this case, the plaintiff's need for the requested information

outweighed the public interest in the protection of the free flow of

information to the press.

Sla

Appendix A

Bd., 402 Mass. 581, 585, cert. denied, 488 U.S. 980 (1988).

We conclude that it did not |

b. Damages against Globe defendants. The only issue

for the jury at trial with respect to the Globe defendants was

what amount of damages, if any, the conduct for which they

were held liable caused to the plaintiff. We are aware of the

general rule that a reviewing court should not disturb a jury’s

award of damages unless it is clearly excessive in relation to

what the plaintiff's evidence has demonstrated damages to

be. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824

(1997); Robertson v. Gaston Snow & Ely Bartlett, 404 Mass.

515, 520, cert. denied, 493 U.S. 894 (1989); Bartley v.

Phillips, 317 Mass. 35, 40-41 (1944). We are also aware that

appellate judges have a special duty in reviewing verdicts in

defamation cases, “[b]ecause of constitutional considerations,

and the potential difficulties in assessing fair compensation.”

Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 861

(1975). A plaintiff in a successful defamation case is entitled

only to fair compensation for actual damages, including

emotional distress and harm to reputation (and any special

damages which have been pleaded and proved). See Tosti v.

Ayik, 394 Mass. 482, 496 (1985), S.C., 400 Mass. 224, cert.

denied sub nom. United Auto Workers, Local 422 v. Tosti,

484 U.S. 964 (1987).

34. The first disclosure order was entered in October, 1999. In

November, 1999, the Globe defendants filed motions for summary

judgment seeking dismissal of the plaintiff's remaining claims against

them. The second disclosure order was entered in June, 2000. The

judge did not err in failing to address the pending summary judgment

motions before resolving the discovery issues. The plaintiff was

entitled to adequate discovery before litigating the summary judgment

motions.

52a

Appendix A

The theme of the plaintiff's case was that the Globe

defendants “improperly spotlighted” her and that Dana-

Farber and Livingston (the medical defendants) “improperly

scapegoated” her. In her memorandum and order on the

posttrial motions of the parties, the judge summarized the

plaintiff’s theory with respect to damages against all

defendants as “the defendants’ actions that caused damage

to the plaintiff, although based on different and separate legal

theories, operat[ing] on [ ] parallel course[s].” We agree with

this assessment. As has been stated, the jury determined that

joint and several liability was not applicable. Of the total

damages awarded the plaintiff, the jury awarded $2,100,000

against the Globe defendants and $2,100,000 against the

medical defendants. Against each set of defendants, the jury’s

total award reflected identical sums for economic damages

($300,000) and for emotional distress damages ($1,800,000).

It appears that the precisely equivalent apportionment of

damages between the medical defendants and the Globe

defendants was deliberate2° There is no indication, however,

that the controlling damages principles were not correctly

applied. Further, unlike the claims against Dana-Farber, the

Globe defendants, by reason of the default judgment, were

liable on all claims made by the plaintiff and the damages

flowing from their wrongdoing. The issue present in the

assessment of damages against Dana-Farber, therefore, is not

present in the case against the Globe defendants.

35. It is likely that the jury decided on a total monetary figure

necessary fairly to compensate the plaintiff for injuries caused by

the defendants’ combined actions. Then, based on their conclusion

that the medical defendants and the Globe defendants were equally

to blame (although not jointly liable), the jury could have apportioned

damages for economic loss and emotional distress damages in

precisely equivalent amounts between the two sets of defendants.

53a

Appendix A

The judge’s general instructions to the jury on damages

(which drew no objection that is relevant here) clearly

explained that compensatory damages must be calculated to

compensate the plaintiff for her losses, based with reasonable

certainty on the evidence, only for harm caused by the

wrongful conduct, and that damages may not be duplicative.

The judge cautioned the jury that damages must be attributed

to the defendant who inflicted them and instructed the jury

on joint and severable liability. We must presume that the

jury assessed damages, separately but in equal measure,

against the medical defendants and the Globe defendants in

accordance with the judge’s instructions. See Mailman’s

Steam Carpet Cleaning Corp. v. Lizotte, 415 Mass. 865, 870

(1993).

Although the damages awarded the plaintiff for the

defaulted claims against the Globe defendants may appear

high,.they were based on evidence that the Globe articles

impugning the plaintiff affected her career*® and caused her

a great deal of emotional and psychological anguish. The

plaintiff, who had enjoyed much success in her work at Dana-

36. We reject the Globe’s assertion that the $300,000 award

for lost compensation and injury to the plaintiff's business reputation

($240,000 assessed against the Globe and $60,000 against Knox) is

unjustified because the plaintiff failed to show that these losses were

caused by the Globe defendants. Apart from instructing the jury,

generally, that compensatory damages must be calculated to

compensate a plaintiff only for harm caused by the wrongful conduct,

the judge also cautioned the jury to “attribute the damages to the

people who caused them” so that “you are not holding one defendant

liable for harm inflicted by another.” There is no reason to believe

that the jury did not understand the distinction between the two sets

of defendants.

54a

Appendix A

Farber that combined both clinical and research aspects,

looked forward to a bright future in her field of breast cancer

research. She eventually was forced to accept employment,

at a hospital in another State, that involved clinical work

only. By June, 1995, three months after the original article

naming the plaintiff appeared in the Globe, a psychiatrist

and fellow physician at Dana-Farber became concerned that

the plaintiff might harm herself, wondered whether she was

fit to work, and suggested that she see a psychiatrist. The

plaintiff thereafter received weekly treatment, from August,

1995, until September, 1996, from Dr. Mary Ann Badaracco.

Dr. Badaracco testified that the plaintiff suffered from an

“adjustment disorder with depressive features” and was

particularly troubled by Globe articles that the plaintiff

perceived to be unfair. Dr. Badaracco’s testimony was

confirmed by several of the plaintiff's colleagues and a

trained social worker, who found the plaintiff to be in a state

of crisis or trauma. A colleague and friend observed that the

plaintiff was “very depressed” and “very anxious.” Her sister

testified that the plaintiff became a different person from the

one she was before March 23, the day that the first article,

naming the plaintiff, appeared in the Globe.*’ The plaintiff

began to eat a lot, gained weight, and could not sleep. She

cried frequently and would break down at family gatherings.

The above observations were independently confirmed

at trial, through testimony of an expert forensic psychiatrist,

37. The plaintiff’s sister also testified that Knox paid an

unannounced visit to the plaintiff's home at approximately 9 P.M.

one evening. The sister, who was there alone at the time, testified

that the plaintiff was “very upset and crying” when told of the

incident.

55a

Appendix A.

Dr. Thomas G. Gutheil, who had extensively interviewed the

plaintiff and examined her records. Dr. Gutheil testified to a

series of events, including the Globe coverage and the

publicity focused on her, that made the plaintiff feel

personally singled out and blamed. Dr. Gutheil testified that

these events had “serious mental effects” on the plaintiff,

who suffered “severe” emotional distress and a “sense of

devastation,” and was in “mental pain or psychological pain

and discomfort for most of [the] time.” In Dr. Gutheil’s

opinion, a key injury to the plaintiff was “the impact to her

reputation from being published in nationally available

sources.” He stated his view that the plaintiff suffered a

“really devastating loss, really at the core of her identity.”

The judge found no basis on which to overturn the awards as

excessive, and neither do we.*®

5. The first paragraph of the amended judgment entered

on October 15, 2003, is vacated. That paragraph is to be

replaced with a further amended partial judgment finding

the defendant Dana-Farber liable to the plaintiff on her claim

for retaliation under G.L. c. 151B, finding the defendant

Dana-Farber liable for attorney’s fees in the sum of

$391,340.80, with interest from September 23, 2002, and

38. At trial, the plaintiff introduced evidence that the Globe’s

correction of Knox’s inaccurate statement of March 23, 1995, that

the plaintiff had countersigned the overdose orders, was not published

until June 4, 1995. The judge properly instructed the jury, as requested

by the Globe defendants, that they could consider the retraction of a

libel statement as a factor in mitigating damages. See Stone v. Essex

County Newspapers, Inc., 367 Mass. 849, 860-861 (1975). There is

no support for the Globe’s assertion that the evidence may have

impermissibly invited a punitive damages award.

56a

Appendix A

costs in the amount of $27,284.85,°° finding the defendant

Livingston not liable to the plaintiff, finding the Globe

defendants liable to the plaintiff on all of her claims against

them, and finding the Globe defendants liable for damages

in the sum of $2,100,000, and costs in the amount of

$8,959.84.*° There is to be a new trial to assess the plaintiff's

damages against Dana-Farber (without regard to the

charitable cap set forth in G.L. c. 231, § 85K). The final two

paragraphs of the amended judgment (neither of which are

at issue in this appeal) are affirmed.

So ordered.

39. In her brief, the plaintiff requests an award of additional

attorney’s fees and costs related to this appeal. She is entitled to

such an award, based on the time and funds reasonably expended on

the success of her G.L. c. 151B claim. Pursuant to the practice recently

announced in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiff

should file with the clerk of this court her application for fees and

costs, together with any supporting materials, within fourteen days

of the rescript from this court. Dana-Farber will have thirty days to

respond to that submission. This court then will enter an appropriate

order.

40. Because we affirm the default judgments against the Globe

defendants, we do not disturb the order, entered November 6, 2001,

that they reimburse the plaintiff for attorney’s fees, costs, and

expenses incurred in connection with her efforts to secure their

compliance with the discovery orders entered October 21, 1999, and

June 13, 2000, in the amount of $27,781.70. See note 32, supra.

57a

APPENDIX B — ORDER ON POST-TRIAL MOTIONS

OF ALL PARTIES OF THE SUPERIOR COURT OF

THE COMMONWEALTH OF MASSACHUSETTS

DATED AUGUST 28, 2003

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS.

SUPERIOR COURT

CIVIL ACTION

NO. 96-0565E

LOIS AYASH, M.D.,

Plaintiff

DANA-FARBER CANCER INSTITUTE,

DAVID M. LIVINGSTON,

THE BOSTON GLOBE, and

RICHARD KNOX,

Defendants

ORDER ON POST-TRIAL MOTIONS

OF ALL PARTIES

A hearing en post-trial motions filed by all defendants

was held in March of this year. While the Court was

considering the briefs and arguments made by all counsel,

and working on this memorandum and order, two new

decisions! on G.L. c. 231, § 85K, the so-called charitable

1. Keene v. Brigham & Women’s Hospital. Inc., 439 Mass. 223

(2003) and Conners v. Northeast Hospital Corp., 439 Mass. 469

(2003).

58a

Appendix B

immunity statute, an issue in the case, were issued by the

Supreme Judicial Court. This Court requested supplemental

memoranda from the Dana-Farber Cancer Institute (DFCI)

defendants and the plaintiff? on the applicability, if any, of

these decisions to the arguments made by both counsel in

their papers and in open court. These supplemental filings

were received by the Court on June 13, 2003.

Having considered the recent filings, as well as the

original filings and oral arguments, the Court rules and orders

as follows.

A. The Motion of DFCI and David M. Livingston to

Correct the Judgment

Having reviewed the judgment against DFCI and David

Livingston, the Court is persuaded that the judgment of

August 13, 2002, Part (A), in the sum of $1,260,000.00 with

interest from February 1, 1996 is in error and should be

corrected so as to be against Dana-Farber Cancer Institute

(DFCI) only. The three claims of retaliation, invasion of

privacy, and breach of implied covenant of good faith and

fair dealing were made against DFCI only, and the judgment

should not have made the award a joint one with defendant

David Livingston.

After consideration of the cases and supplemental

memoranda, the Court also concludes that G.L. c. 231, § 85K,

applies to the jury verdict awarded on the three claims

2. The Court did not request supplemental memoranda from

the Globe defendants because the issue of charitable immunity did

not affect the judgments against the Boston Globe or Richard A. Knox.

592

Appendix B

referenced above against DFCI only. I am persuaded that the

two statutory claims G.L. c. 151B, and 214, § 1B) are

tort-like and the implied covenant claim is more like a breach

of implied warranty claim, also a tort-like concept, than a

strict breach of contract claim. All of the cases on charitable

immunity, and particularly the recent Keene and Conners

decisions, make it clear that the immunity statute is to be

interpreted broadly, not narrowly. Otherwise, the charitable

entity’s ability to fulfil its charitable purpose would be

chipped away by damage judgments. As the Appeals Court

noted in St. Clair v. Trustees of Boston University, 25 Mass.

App. Ct. 662 (1988) a case involving the question of whether

intentional torts were covered by the doctrine, the purpose

of the statute is to avoid diverting “funds devoted to the relief

of suffering humanity .. . to payment of claims wholly foreign

to the purposes of the public trust.” (at 668). Massachusetts

has applied the doctrine in numerous cases involving

negligence of the charity’s own employees (citations

omitted), to claims alleging negligence in the selection of

employees, Rosen v. Peter Bent Brigham Hospital, 235 Mass.

66 (1920), and to claims relating to the discussion of former

employees with prospective employees. St. Clair v. Trustees

of Boston University, supra. In this case, it would be contrary

to the purpose of the charitable immunity statute to allow

recovery for breach of the implied agreement to deal with

employees fairly, a tort-like concept, since at all times it was

assumed that the damages for all three causes of actions were

the same and that the claims were simply alternative forms

of pleading based on the same set of facts.

I also conclude that all of the activities which were the

subject of plaintiff's complaints were performed in the course

60a

Appendix B

of activity carried on to accomplish the charitable purposes

of DFCI. A charity such as DFCI cannot operate without

employees to treat its seriously ill patients and to perform

the continuing research necessary to discover treatments for

the devastating effects which cancer inflicts on patients.

Plaintiffs unsupported assertion that the activities complained

of come under the rubric “primarily commercial in character”

is simply not persuasive.

Part (B) of the judgment against Dr. Livingston only

remains as stated in the judgment docketed on August 13,

2002.

B. The Motions of all Defendants for New Trial and/

or Remittitur Based on Damages Awarded

Ali defendants argued that the emotional distress

damages were excessive. In addition, they argued that the

economic damages were not based on the evidence, and the

Globe defendants argued that they were duplicative. The

Court rejects all these claims.

1. Emotional Distress Damages

All defendants argued that the emotional distress

damages were excessive. With respect to these damages,

although they were extremely generous, the Court does not

believe they warrant a remittitur or justify a new tnal. Unlike

the case of Labonte v. Wheeler, 424 Mass. 813 (1997), relied

on by the defendants, there was evidence here from two

psychiatrists that Dr. Ayash was clinically depressed as a

result of the actions of the defendants. The jury could have

= Ss ° .-

- -

6la

Appendix B

found that her entire professional and personal life was totally

disrupted by the events at DFCI, the articles that appeared in

the Boston Globe, and the actions of Richard Knox. As a

result, Dr. Ayash left a very close-knit family, many friends,

and everything familiar to her and moved to a different part

of the country where she had no support system in place to

start all over again. The jury could believe that her confidence

wag shaken, her pride in her work and her self-esteem

destroyed. The jury placed a high monetary value on the

resulting emotional distress, having considered the evidence

and applying the Court’s instructions on the components of

emotional distress damages.

The Court finds support for its decision in the recent

case of Borne v. Haverhill Golf & Country Club, Inc., 58

Mass. App. Ct. 306 (2003). As the Appeals Court noted there,

jurors are uniquely qualified to assess the emotional damage

‘incident to being placed in a second-class citizen status,

made to feel inferior, socially ostracized, and demeaned in

public” (at 320). That case was about golf; this case was

about a talented physician’s loss of her star status as a cancer '

researcher, her loss of a career path that was her dream, as

well as the loss of her entire familial and emotional support

system. This court believes that the jury carefully evaluated

the emotional distress caused to Dr. Ayash by the treatment

she received from the defendants and awarded her what they,

from various walks of life and a variety of experience,

believed to be fair and reasonable. The Court finds no basis

to remit these damages or order a new trial on the ground

that the emotional distress damages were excessive.

62a

Appendix B

2. Economic Damage

The Court finds that the economic damages were based

on the evidence. They were not excessive and they were not

duplicative. As against the DFCI defendants, there was

evidence to enable the jury to find that Dr. Ayash lost

opportunities for promotion by having to start anew at the

University of Michigan. There she is not on a tenure track,

although she is receiving a good salary. The jury could also

find that she will not attain the compensation level and

prestigious standing she could have hoped to obtain at the

Harvard Medical School and its teaching hospitals. As to

her professional reputation, there was evidence that her

professional standing was damaged by the treatment she

received from her superiors and her colleagues. Finally, the

damage awards for economic loss are not duplicative as

against DFCI and Dr. Livingston. The jury was instructed

several times during the Court’s charge as well as on the

verdict slip itself that they could not award damages more

than once for the same injury. The jury made intelligent sense

of the verdict slip and the evidence, and the verdicts do not

show that the jury engaged in duplication. They answered

the questions asked and awarded separate and different

amounts against DFCI and Dr. Livingston. Finally, when

faced with the opportunity to make a finding of joint and

several liability against the DFCI defendants and the Globe

defendants, the jury clearly declined to do so and awarded

zero dollars in answer to the question asking for any damages

awarded jointly and severally (Question 9).

Nor are the damages awarded against the Globe and

Richard Knox duplicative. The jury had evidence that Globe

63a

Appendix B

articles other than those written by Mr. Knox were defamatory

and damaging to Dr. Ayash’s emotional well being as well as

her professional reputation. Thus, there is an evidentiary basis

for the separate award of economic damages against the

Globe in addition to that awarded against Mr. Knox. As to

Mr. Knox, the jury heard evidence about defamatory articles

written by Mr. Knox as well as conduct of Mr. Knox separate

from and in addition to the published articles he wrote for

the Globe which the jury could find justified separate verdicts

against him for defamation and for infliction of emotional

distress and/or interference with advantageous relations.

There was no duplication of the damage awards found by

the jury against Mr. Knox.

This jury was truly representative of a community of

Dr. Ayash’s peers. It was almost equally divided between men

and women and they ranged in age from 24 to 59. Ten of the

twelve had college degrees, and some of those ten had

graduate degrees as well. There was one practicing lawyer

in the group. There was nothing about their conduct during

the trial or their questions while deliberating that indicated

that they were motivated by passion or misunderstanding.

Their questions were intelligent, and they did not appear to

be confused by the instructions or by the verdict slip. Nor

was there any indication that they wanted to punish the

defendants. Indeed, when given the opportunity to award

punitive damages, they awarded the relatively small sum of

$5,000.00 only against DFCI.

64a

Appendix B

C. The Motion of All Defendants for Limitation on

the Interest Award

This motion is denied. The Legislature sets the interest

rate by statute and it is up to the Legislature, not the Court,

to determine if the rate is too high and, therefore, not

compensatory.

D. The Motion for Judgment Notwithstanding the

Verdict and/or the Motion for New Trial of DFCI

and David Livingston Based on Grounds other

than Damages

The issue of the admissibility of so-called peer review

documents was addressed and decided prior to trial by Judge

Peter Lauriat. It is the law of the case, and this Court declines

to review and/or disturb it. The Court also believes that any

jury instruction with respect to the default judgment that had

been entered against the Globe was proper and sufficiently

explanatory. It did not lead to jury confusion, nor did it lead

to conclusions that were prejudicial to DFCI and Dr.

Livingston. Specifically, the jury’s questions indicated that

they understood the distinction between the two sets of

defendants. Furthermore, they found exactly the same total

damages against both sets of defendants. Plaintiff argued the

case on the theory that the defendants’ actions that caused

damage to the plaintiff, although based on different and

separate legal theories, operated on a parallel course. The

jury apparently accepted this argument and decided on a total

damage figure which it did not find was owed jointly and

severally, but separately. It then took the total damage figure

and allocated it among the various defendants based on the

65a

Appendix B

different claims asserted against them. The jury’s findings

were not against the weight of the evidence and do not

warrant a new trial, nor do any other grounds asserted

persuade the Court to enter a judgment NOV or order a new

trial.

E. Motion of DFCI for Judgment Notwithstanding

the Verdict and/or for a New Trial on Separate

Grounds

I find that Dr. Ayash did not have to file a new

discrimination claim with MCAD when she added a claim

for retaliation against DFCi and Dr. Livingston. She had

already filed a discrimination claim with MCAD and she

could include a retaliation claim in the case properly filed in

court. The evidence supported a finding of a causal

relationship between the actions of the DFCI defendants and

the non-renewal of Dr. Ayash’s contract. This was clearly an

adverse employment action and a basis for the retaliation

verdict. There was also abundant basis in the evidence for a

judgment on the invasion of privacy claim as well as on the

breach of the implied covenant of good faith and fair dealing.

DFCI’s motion for judgment notwithstanding the verdict and

for new trial on the basis that there was insufficient evidence

to support the jury’s verdict is denied .

66a

Appendix B

F. Motion of Defendant David Livingston for

Judgment Notwithstanding the Verdict or for a

New Trial on Separate Grounds

This motion is also denied. The jury had a basis for

finding that Dr. Livingston’s actions were not based on a

proper motive but were, in fact, the result of a desire to blame

Dr. Ayash for what had occurred rather than DFCI itself. There

was also sufficient evidence that he knew about her contract

with DFCI and that even though he was no longer

physician-in-chief, he was able to use his influence to see

that it was not renewed. Accordingly, his separate motion 1s

denied.

G. Motion of the Globe Defendants for a New Trial

or Judgment Notwithstanding the Verdict on

Grounds Other than Damages

All of the Globe defendants’ remaining arguments for a

new trial or judgment notwithstanding the verdict raise issues

arising from Judge Peter Lauriat’s decision prior to trial to

enter a finding of liability against the Globe and Richard

Knox on all claims asserted against them by the plaintiff for

refusing to disclose their sources for the articles published

about the death of Betsy Lehman. As a result of this ruling

by Judge Lauriat, the only issue for the jury at trial with

respect to these defendants was what amount of damages, if

any, were caused to the plaintiff by the actions of the Globe

and/or Mr. Richard Knox.

The Court has already discussed the damage award

above. The Court declines to discuss and revisit the rulings

67a

Appendix B

on other matters made by another justice of this court prior

to trial. They remain live issues for any appeal of this case

and do not provide, in this Court’s view and at this stage of

the case, a basis for a new trial or for a judgment

notwithstanding the verdict.

CONCLUSION

In accordance with the above, and in summary, the

disposition of all post-trial motions are as follows:

A. Motion to correct the Judgement of DFCI and David

Livingston - ALLOWED in part and DENIED in

part.

B. Joint Motions of all defendants for Remittitur and/

or New Trial —- DENIED.

C. Motion for a Limitation on Any Interest Award -

(orally joined by Globe defendants) - DENIED.

D. Joint Motions of DFCI and David Livingston for a

New Trial — DENIED.

E. Separate Motion of DFCI for Judgment

Notwithstanding the Verdict or, in the alternative for

New Trial - DENIED.

F. Separate Motion of David M. Livingston for

Judgment Notwithstanding the Verdict, or in the

alternative, for a New Trial - DENIED.

68a

Appendix B

G. Motion of Globe Newspaper Company and Richard

Knox for New Trial or Remittitur or to alter the

Judgment, or in the alternative, for a New Trial —

DENIED. --

s/ Catherine A. White

Catherine A. White,

Justice of the Superior Court

DATED: August 28, 2003

69a

APPENDIX C — MEMORANDUM OF DECISION

AND ORDER OF THE SUPERIOR COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

DATED APRIL 2, 2001

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss

SUPERIOR COURT

CIVIL ACTION

NO. 96-565-E

LOIS AYASH, M.D.

vs.

DANA FARBER CANCER INSTITUTE,

DAVID M. LIVINGSTON, THE BOSTON GLOBE

and RICHARD A. KNOX

MEMORANDUM OF DECISION AND ORDER ON

(1) PLAINTIFF’S MOTION FOR SANCTIONS,

INCLUDING CONTEMPT, PURSUANT TO RULE 37

AGAINST THE BOSTON GLOBE AND RICHARD

KNOX, AND (2) MOTION OF DEFENDANTS GLOBE

NEWSPAPER COMPANY AND RICHARD A. KNOX

FOR RECONSIDERATION OF ORDER ON (1) THE

PLAINTIFF’S RENEWED MOTION TO COMPEL

CONFIDENTIAL SOURCE INFORMATION and

(2) DEFENDANTS GLOBE NEWSPAPER COMPANY

AND RICHARD A. KNOX’S RENEWED MOTION FOR

PROTECTIVE ORDER

70a

Appendix C

The plaintiff, Lois Ayash, M.D. (“Ayash”), has moved,

pursuant to Mass. R. Civ. P. 37(b), for the impositions of

sanctions against the Boston Globe newspaper and its

reporter, Richard Knox (“Knox”) (collectively, “the Globe

defendants”), for their failure to comply with this Court’s

discovery orders dated October 21, 1999 and June 13, 2000.

Those orders required the G/obe defendants to provide

discovery regarding the purported “confidential sources”

relied upon by Knox in a series of articles which appeared in

the Boston Globe in March of 1995. The articles, authored

by Knox, concerned the death of Boston Globe reporter Betsy

Lehman from an accidental chemotherapy overdose that she

received while a patient at the defendant Dana Farber Cancer

Institute.

In its October 21, 1999 Order, this court conducted the

balancing test mandated by the Appeals Court in Ayash v.

Dana Farber Cancer Institute, 46 Mass. App. Ct. 384, 393

(1999) (see Petition for Promulgation of Rules, 395 Mass.

164, 172 (1985), citing Commonwealth v. Corsetti, 387 Mass.

1, 5-6 (1982)), determined that Ayash’s need for the

information “is tangible and substantial and outweighs ‘the

public interests in protecting the free flow of information,”

and allowed the Plaintiff’s Renewed Motion to Compel

Confidential Source Information. The court also denied the

Defendants Globe Newspaper Company and Richard Knox’s

Renewed Motion for Protective Order. In its June 13, 2000

Order, this court allowed the Plaintiff's Motion to Compel

Richard A. Knox to Answer One Interrogatory.

Notwithstanding the court’s orders, Knox has continued

to refuse to reveal his purported “confidential sources” or

Tla

Appendix C

any information which might lead to the identification of

those sources. The Globe defendants have also steadfastly

refused to provide any discovery regarding the purported

“confidential sources” under any circumstances.' The Court

finds that the Globe defendants’ ongoing refusal to comply

with its October 21, 1999 and June 13, 2000 discovery orders

constitutes a contempt, as well as a violation of the court’s

orders, and the Globe defendants are, therefore, subject to

the sanctions authorized by Mass. R. Civ. P. 37(b)(2). The

Globe defendants’ motion for reconsideration is denied.

In fashioning appropriate sanctions to address the Globe

defendants’ conduct, the court has wide latitude to “make

such orders in regard to the failure [to comply with a

discovery order] as are just.” Mass. R. Civ. P. 37(b)(2).

See Smith & Zobel, Rules Practice, §§ 37.8 and 37.22 (1975

and Supp. 2000); Atlas Tack Corp. v. Donabed, 47 Mass.

App. Ct. 221, 225 (1999). The court has the power to enter

judgment in favor of the party aggrieved by the failure to

comply with discovery orders. See Mass. ee Ae

37(b)(2)(C) (court may “judgment by default against the

disobedient party”); see also Roxse Homes Ltd. Partnership

v. Roxse Homes, Inc., 399 Mass. 401, 406 (1987) (affirming

entry of judgment where there was a “clear violation of court

orders” and the non-complying party “had more than one

opportunity to comply and did not”). The court also has the

power, “in lieu of any of the [Rule 37(b)(2)(A)-(D)] orders

or in addition thereto” to treat “as a contempt of court the

1. For example, although Ayash has agreed to accept a limited

protective order and this Court has indicated its willingness to grant

such an order, the Globe defendants have refused to consider this

proposal.

72a

Appendix C

failure to obey any order,” and to impose a prospective daily

fine in order to coerce a contemptuous defendant into

complying with the court’s order. See Labor Relations

Comm’n v. Fall River Educator’s Assn., 382 Mass. 465, 476

(1981).

In the present case, the court has already determined that

the Globe defendants’ refusal to comply with its discovery

orders constitutes a contempt of the court. Unfortunately,

that determination, and the resultant financial sanctions

imposed by the court, have not succeeded in securing the

Globe defendants’ compliance with the court’s discovery

orders. Thus, the court must and does now impose an alternate

sanction authorized by Rule 37(b)(2)—the entry of a default

judgment against the G/obe defendants on the plaintiff's

claims pending against them. Mass.R.Civ.P. 37(b)(2)(C).

While entry of a judgment of default against the Globe

defendants is an appropriate sanction to impose in the

circumstances of this case, such an order does little to rectify

the injustice inflicted upon the plaintiff's right to discovery

in her case against the defendants Dana Farber Cancer

Institute and David M. Livingston. The interests of justice

will not be adequately served by the mere imposition of a

default judgment against the Globe defendants, but the court,

perhaps naively, clings to the hope that the G/obe defendants

will eventually recognize their continuing legal obligation

to permit discovery in this matter and will ultimately comply

with Ayash’s narrow discovery requests.

73a

Appendix C

The Globe defendants’ refusal to disclose the identity

of Knox’s “confidential sources” may also effectively protect

the Dana Farber Cancer Institute and David M. Livingston

from liability in this action. In a case already beset by multiple

tragedies, the Globe defendants’ refusal to disclose their

sources constitutes another ongoing, but imminently

avoidable, harm to the participants in this case, as well as to

the public’s right to the free flow of information. The Boston

Globe, long a champion of the freedom of information

and of unfettered access to public (and even not-so-public)

records, has unilaterally and unnecessarily interrupted the

free flow of information that may be critical to Ayash. It is

ironic that the Globe defendants’ conduct may serve to

effectuate the interests of the very hospital, as well as the

hospital’s former chief executive, where the Boston Globe’s

own reporter was treated and died. It is not a legacy of which

the Globe defendants should be proud.

ORDER

For the foregoing reasons, the Plaintiff's Motion for

Sanctions, Including Contempt, Pursuant to Rule 37 Against

The Boston Globe and Richard Knox is ALLOWED, and

the Motion of Defendants Globe Newspaper Company and

Richard A. Knox for Reconsideration of Order on (1) The

Plaintiff's Renewed Motion To Compel Confidential Source

Information, and (2) Defendants Globe Newspaper Company

and Richard A. Knox’s Renewed Motion for a Protective

Order is DENIED.

74a

Appendix C

A Judgment of liability shall enter in favor of the plaintiff

Lois Ayash, M.D., on Counts VII, [IX and X of her Amended

Complaint and Jury Claim in this action, the matter shall be

set down for a hearing on assessment of damages against the

defendants Globe Newspaper Company and Richard A. Knox.

It is further ORDERED, pursuant to Mass.R.Civ.P.

37(b)(2), that the defendants Globe Newspaper Company and

Richard A. Knox shall pay all reasonable attorneys fees and

expenses incurred by the plaintiff, Lois Ayash, M.D., that

were caused by the failure of the Globe Newspaper Company

and Richard A. Knox to comply with the court’s orders of

October 21, 1999 and June 13, 2000. The plaintiff shall serve

a detailed affidavit of costs and expenses, pursuant to

Superior Court Rule 9A, within 45 days of the date of this

Order.

s/ Peter M. Lauriat

Peter M. Lauriat

Justice of the Superior Court

Dated: April 2, 2001

75a

APPENDIX D — ORDER OF THE SUPERIOR COURT

OF THE COMMONWEALTH OF MASSACHUSETTS

DATED JUNE 13, 2000

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss

SUPERIOR COURT

CIVIL ACTION

NO. 96-0565-E

LOIS AYASH, M.D.

VS.

DANA-FARBER CANCER INSTITUTE,

DAVID M. LIVINGSTON, THE BOSTON GLOBE,

and RICHARD A. KNOX

ORDER ON PLAINTIFF’S MOTION TO COMPEL

RICHARD A. KNOX TO ANSWER

ONE INTERROGATORY

At first blush, allowance of this motion may appear to

duplicate the court’s already existing order requiring

defendant Richard A. Knox (“Knox”) to reveal his alleged

confidential sources by indirectly requiring him to disclose

the same information. However, Knox’s failure to reveal his

non-confidential sources after being ordered by this Court

to do so would permit the plaintiff to request entry of a

default judgment against him pursuant to Mass. R. Civ. P.

37(b)(2)(C). Since the remedy for failure to abide by the

court’s order with respect to this one interrogatory could be

76a

Appendix D

a default judgment rather than a trial for and possible finding of

contempt of court, allowance of the present motion would not

be duplicative of any outstanding discovery order. Rather than

face the prospect of incarceration or a substantial fine, Knox

would have to balance his desire to protect the identity of those

individuals who have given him non-confidentia! information

against the probability of a default judgment as to liability and a

hearing before the court to assess the damages his conduct has

caused the plaintiff in this action.

Accordingly, Plaintiffs Motion to Compel Richard A.

Knox to Answer One Interrogatory is ALLOWED. Knox

shal! answer Interrogatory No. I by or before July 10, 2000,

or the plaintiff may thereafter apply, pursuant to Superior

Court Rule 9A, for an order under Mass. R. Civ. P.

37(b)(2)(C).

s/ Peter M. Lauriat

Peter M. Lauriat

Justice of the Superior Court

Dated: June 13, 2000

77a

APPENDIX E — MEMORANDUM OF DECISION

AND ORDER OF THE SUPERIOR COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

DATED OCTOBER 21, 1999

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss

SUPERIOR COURT

CIVIL ACTION

NO. 96-565-E

LOIS AYASH, M.D.

vs.

DANA-FARBER CANCER INSTITUTE,

DAVID M. LIVINGSTON, THE BOSTON GLOBE,

and RICHARD A. KNOX

MEMORANDUM OF DECISION AND ORDER ON

(1) PLAINTIFF’S RENEWED MOTION TO COMPEL

CONFIDENTIAL SOURCE INFORMATION, and

(2) DEFENDANTS GLOBE NEWSPAPER COMPANY

AND RICHARD KNOX’S RENEWED MOTION FOR

PROTECTIVE ORDER

On February 26, 1999, the Appeals Court for the

Commonwealth of Massachusetts vacated an order of this

court dated February 23, 1998, compelling defendants,

Richard Knox (“Knox”) and The Boston Globe, to disclose

the identity of Knox’s confidential sources. The Appeals

Court also vacated an August 13, 1998, order holding these

defendants in contempt for refusing to disclose those sources.

78a

Appendix E

See Ayash v. Dana-Farber Cancer Institute, et al., 46 Mass.

App. Ct. 384 (1999). The Appeals Court found that the

defendants had indeed made “some showing” that disclosure

of Knox’s confidential sources presents a danger to the free

flow of information that is more than speculative or

theoretical.

Thus, the Appeals Court concluded that this court must

determine, in light of the fact that Knox no longer seeks to

protect the confidentiality of Karen Antman and that he has

not claimed confidentiality for any of his sources for the two

statements in his March 23, 1995 article, whether as to the

libel claim against these defendants, Knox’s disclosure of

additional confidential sources would achieve more than the

“needless disclosure of confidential relationships,” and,

whether disclosure is required as to the other non-libel counts

in the complaint.' After hearing, and upon consideration of

the memoranda and oral arguments of counsel, the plaintiff's

renewed motion to compel confidential source information

is allowed, and the defendants’ motion for a protective order

is denied.

DISCUSSION

In remanding this case, the Appeals Court ruled that this

court must perform a balancing test to determine whether

disclosure of the confidential source(s) is required. The test

requires the court to balance “the public interest in every

1. Based on the representations of The Boston Globe and Knox,

the plaintiff no longer argues that her libel claims require disclosure

of Knox’s confidential sources. Therefore, the court need not address

this issue.

79a

Appendix E

person’s evidence and the public interest in protecting the

free flow of information,” in order to determine whether

disclosure should be prevented or compelled. See Petition

for Promulgation of Rules, 395 Mass. 164, 172 (1985), citing

Commonwealth v. Corsetti, 387 Mass. 1, 5-6 (1982).

Three areas remain as to which these defendants seek to

protect their sources, and as to which the plaintiff, Lois Ayash,

M.D. (“Ayash”), claims a critical need for disclosure: (1) the

source(s) of the May 23, 1995, Synopsis of the Conclusions

and Recommendations of the Internal Peer Review

Committee (the “Synopsis”) and the “Institute Actions

in Response to Synopsis of the Conclusions and

Recommendations on the Internal Peer Review Committee

of the Board of Trustees of the Dana-Farber Cancer Institute”

(“Institute Response”); (2) the source(s) of the information

pertaining to the Corrective Action proceedings against

Ayash; and (3) the source(s) of the information that a

complaint was pending against Ayash in the Board of

Registration of Medicine.

In addition to the libel counts against The Boston Globe

and Knox, Ayash has asserted claims for intentional

interference with advantageous business relations, and

intentional and negligent infliction of emotional distress

against Knox. Ayash has also asserted claims against the

defendant, Dana-Farber Cancer Institute (“DFCI”), alleging

gender discrimination, breach of contract, breach of the

covenant of good faith and fair dealing, invasion of privacy,

and defamation; and, against the defendant, David

Livingston, M.D. (“Livingston”), for defamation and

intentional interference with advantageous business relations.

80a

Appendix E

Ayash first seeks to identify the confidential source(s)

who turned over the Synopsis and the Institute Response to

Knox. The Synopsis and the Institute Response bears directly

on Ayash’s claims against Knox for intentional and negligent

infliction of emotional distress, and against the DFCI for

breach of contract, breach of the implied covenant of good

faith and fair dealing, and invasion of privacy. Whether Knox

engaged in actionable “extreme and outrageous behavior”

depends on the methods and circumstances by which he

obtained and revealed these documents.’ The Boston Globe

and Knox’s refusal to provide and identifying information

about the source(s) who provided the Synopsis and the

Institute Response severely undermines Ayash’s ability to

establish the elements necessary to prove her intentional and

negligent infliction of emotional distress claims.

Likewise, the identity of the source(s) of the Synopsis

and the Institute Response bears directly on Ayash’s claims

against the DFCI defendants. Whether the DFCI breached

the requirements of its own by-laws regarding confidentiality,

whether the DFCI breached the implied covenant of good

faith and fair dealing by turning over highly confidential

material, and whether the DFCI invaded Ayash’s privacy by

releasing to the press a document which, until that point,

was medical peer review material, all depend on whether the

source(s) was a DFCI agent or employee.

Knox and The Boston Globe have both, in fact, refused

to state whether the source of the Synopsis or the Institute

2. Indeed, the DFCI defendants have consistently asserted that

the Synopsis, until that point, constituted statutorily protected medical

peer review material.

8la

Appendix E

Response was an employee or agent of DFCI. The only other

available source of such information is the DFCI itself, which

has likewise refused to admit that an employee or agent was

the source(s) of the information. If the DFCI was not the

direct or indirect source of the materials which ended up in

the possession of Knox, Ayash’s claims, to the extent they

are dependent on the disclosure of the Synopsis and the

Institute Response, will fail. Thus, identification of the source

is critical.

The same reasoning holds true with regard to the

information concerning the Corrective Action proceedings

which were contractually mandated to be maintained in

confidence; and, further, to the information regarding the

Board of Registration of Medicine, which is required to

remain confidential until an advanced phase in the

proceedings which has never been reached in the present case.

See 243 C.M.R. § 1.02(8)(b). In order to pursue her non-libel

claims against the DFCI, Ayash must be able to prove that

the DFCI was Knox’s source of this information.

As previously determined by this court, Ayash has, and

despite the Globe defendants’ contrary view, exhausted all

reasonable alternative sources for the information she seeks.

Additionally, compelling Ayash to seek the information from

alternate sources places an undue burden on Ayash. Ayash

has made extensive efforts, albeit to no avail, to learn the

sources of this information from sources other than The

Boston Globe and Knox, deposing no less than twelve

witnesses and propounding written discovery requests.

82a

Appendix E

Thus, the court finds that Ayash’s claims against the DFCI

and Knox are absolutely dependent on confirmation that the

source(s) was an agent or employee of DFCI. Without that

confirmation, Ayash’s claims will not succeed, and the

“public’s need for evidence” would be entirely thwarted.

Thus, Ayash’s need for this information is tangible and

substantial and outweighs “the public interest in protecting

the free flow of information.”

Finally, the “public’s interest in protecting the free flow

of information” presumes that the information that flowed

to the Globe defendants in this case is not otherwise protected

from disclosure or publication by law, rule or regulation.

Where, as here, it appears that the source(s) sought to be

protected by the Globe defendants may well have made an

improper and unlawful disclosure of that information, the

balancing test tips against the continued confidentiality of

that/those source(s). Nor should the source(s) of the

statutorily protected information in this case be shielded by

the argument that he/they have since, and in other matters,

disclosed information to Knox. Such an argument cannot and

does not justify the source(s) continued confidentiality in

this case.

In sum, and on balance, the plaintiff’s request for

confidential source information must, in and limited to the

circumstances of this case, be allowed.

83a

Appendix E

ORDER

For the foregoing reasons, (1) Plaintiff's Renewed

Motion to Compel Confidential Source Information is

ALLOWED and (2) Defendants Globe Newspaper Company

and Richard Knox’s Renewed Motion for Protective Order

is DENIED.

s/ Peter M. Lauriat

Peter M. Lauriat

Justice of the Superior Court

Dated: October 21, 1999

84a

APPENDIX F — OPINION OF THE MASSACHUSETTS

APPEALS COURT DATED FEBRUARY 26, 1999

APPEALS COURT OF MASSACHUSETTS,

SUFFOLK

No. 98-P-1663.

LOIS J. AYASH

VS.

DANA-FARBER CANCER INSTITUTE & others: !

Suffolk. October 15, 1998. — February 26, 1999.

Present: WARNER, C.J., GREENBERG, & Beck, JJ.

Warner, C.J. Richard A. Knox, a Boston Globe medical

reporter, and the Globe Newspaper Company, publisher of

The Boston Globe, collectively “the Globe defendants,”

appeal from a judgment of civil contempt for violating a

Superior Court order to disclose Knox’s confidential sources

regarding a series of articles published in The Boston Globe

(Globe). The series concerned accidental chemotherapy

overdoses administered to Globe columnist Betsy Lehman

and to another patient, Maureen Bateman. We vacate both

the order of February 23, 1998, compelling the disclosure of

confidential sources and denying the Globe defendants’

motion for a protective order, and the order of August 13,

1998, imposing sanctions for civil contempt, and remand for

further proceedings in the Superior Court.

1. David M. Livingston, Globe Newspaper Company, and

Richard A. Knox.

85a

Appendix F

The events underlying the Globe series were as follows.

Lehman and Bateman were patients on an experimental breast

cancer treatment protocol (protocol) at the Dana-Farber

Cancer Institute (Dana-Farber). The protocol involved the

administration of high doses of the drug cyclophosphamide.

The plaintiff, Dr. Lois Ayash, a physician at Dana-Farber,

was protocol chair and principal investigator for the protocol.

In mid-November, 1994, a physician on Lehman and

Bateman’s clinical treatment team erroneously administered

a fourfold overdose of the drug. Lehman died on December

3, 1994, as a result of the error.2, Bateman suffered severe

toxicity, but survived.’

It was not until February, 1995, that a data manager at

Dana-Farber discovered that the overdoses had been

administered. Dana-Farber then suspended the clinical

privileges of two physicians who had been directly involved

in the patients’ care when the overdoses were given. No action

was taken against Ayash at that time. On March 31, 1995,

Ayash’s clinical privileges were suspended and she was

assigned to administrative duty. She became the subject of

two Dana-Farber internal investigations and an investigation

by the Massachusetts Board of Registration in Medicine

(board of registration).

2. Ayash began a rotation as the attending physician for Lehman

and Bateman on December 1, 1994. At that time, Lehman and

Bateman had already suffered adverse reactions to the

cyclophosphamide treatment, but Ayash did not discover that the

overdoses had occurred.

3. According to the plaintiff, Bateman later succumbed to her

breast cancer.

86a

Appendix F

The Globe published the first of Knox’s articles

concerning these events on March 23, 1995. In that initial

article, Knox made two statements which Ayash contends

are defamatory. First, he erroneously identified her as one of

the doctors who had countersigned the mistaken order.

Second, he identified her as the “leader of the team,” which,

Ayash contends, wrongly implied that she had direct patient

care responsibilities for Lehman and Bateman when the

overdoses were administered. On February 1, 1996, Ayash

brought suit against the Globe defendants for libel and for

breach of confidentiality and privacy’; against Knox; against

Dana-Farber; and against David M. Livingston, M.D.°

Knox concedes that he was told within four days of

publication that Ayash did not countersign the overdose

orders.° Ayash energetically sought, and Knox refused to

disclose, the identity of the source who had informed him of

4. The Globe defendants were granted partial summary

judgment on Ayash’s invasion of privacy claim.

5. Counts against Knox are for intentional interference with

advantageous business relations, and intentional and/or negligent

infliction of emotional distress.

Counts against Dana-Farber are for gender discrimination,

breach of contract, breach of the implied covenant of good faith and

fair dealing, breach of confidentiality and privacy, and defamation.

Counts against Livingston, who was physician-in-chief at Dana-

Farber du. : ig 1994 through the spring of 1995, are for defamation

and intentioual interference with advantageous business relations.

6. The Globe published a correction on June 4, 1995.

87a

Appendix F

his mistake. That source has now been identified as Karen

Antman, a former physician at Dana-Farber. The disclosure

occurred on August 18, 1998, after the Superior Court judge

had issued the orders under appeal.’ Knox no longer seeks

to maintain confidentiality with regard to Antman.

According to her brief on appeal, Ayash continues to seek

the identities of Knox’s sources who disclosed the following

information which, she asserts, should have been kept

confidential: (1) the information that Ayash was the subject

of a Dana-Farber internal “corrective action” investigation;

(2) the information that Ayash was the subject of an

investigation by the board of registration; and (3) documents

provided to Knox concerning recommendations made by

Dana-Farber’s internal peer review committee and Dana-

Farber’s responses.*

Upon Knox’s refusal during discovery to provide any

information which would lead to the disclosure of his

confidential sources’ identities, Ayash moved to compel

7. Ayash herself named Antman during a deposition conducted

by Dana-Farber. She stated that Antman, a friend of hers, had told

her that she telephoned Knox “shortly after the first article came out

from The Globe and told him essentially that he had made a major

mistake in what he had reported and in terms of what a [principal

investigator] is responsible for.”

8 The documents are titled, “Synopsis of the Conclusions and

Recommendations of the Internal Peer Review Committee” (dated

May 23, 1995), and “Institute Actions in Response to Synopsis of

the Conclusions and Recommendations of the Internal Peer Review

Committee of the Board of Trustees of the Dana-Farber Cancer

Institute.”

88a

Appendix F

disclosure. The Globe defendants moved for a protective

order. On February 23, 1998, the Superior Court judge

granted Ayash’s motion and denied the Globe defendants’

motions.

A single justice of this court denied the Globe defendants’

petition, pursuant to G.L. c. 231, § 118, first par., seeking

reversal of or leave to take an interlocutory appeal from the

Superior Court judge’s orders.” As Knox persevered in his

refusal to reveal his confidential sources, the Superior Court

judge issued a contempt order and imposed monetary

sanctions on Knox and the Globe on August 13, 1998. Knox

was ordered to pay a fine of one hundred dollars per day

beginning August 24, 1998, the amount to escalate by one

hundred dollars per day each successive week that he failed

to comply with the discovery order. The Globe was fined

one thousand dollars per day beginning August 24, 1998,

the amount to escalate by one thousand dollars per day each

successive week that it refused to comply with the discovery

order. A single justice of this court ordered a stay of execution

on the contempt judgment pending an expedited appeal.

On August 28, 1998, the Globe defendants moved in

Superior Court for reconsideration of the discovery and

sanction orders as a result of the August 18, 1998, disclosure

of Karen Antman’s identity. The record before us indicates

9. The single justice’s order was without prejudice to the Globe

defendants submitting a motion to the Superior Court for a more

narrowly tailored protective order. The proposal they had submitted

would have prohibited all discovery Ayash sought to be compelled.

The Globe defendants refused to submit a more narrowly tailored

protective order.

89a

Appendix F

that the motion is pending. We will nevertheless proceed with

our review in the interests of expediting this appeal.

“The validity of an underlying discovery order,

disobedience of which has led to an adjudication of contempt,

may be challenged on appeal from the adjudication of

contempt.” Matter of Roche, 381 Mass. 624, 625 n.1 (1980).

We now review the rulings of the Superior Court judge

denying a protective order and granting the motion to compel

in order to determine whether they constituted an abuse of

discretion. See Sinnott v. Boston Retirement Bd., 402 Mass.

581, 585-586, cert. denied, 488 U.S. 980 (1988).

No constitutional or statutory privilege or rule of court

protects news reporters’ sources of information. As the

Superior Court judge stated in his memorandum of decision

ordering disclosure of Knox’s sources, there is no

constitutionally based privilege protecting news reporters’

sources of information. Matter of a John Doe Grand Jury

Investigation, 410 Mass. 596, 598 (1991), and cases cited.

Nor is there any statutory privilege or rule of court providing

for such a privilege. Jd. Nevertheless, “[i]t is well settled

that, in supervising discovery, a presiding judge is ‘obliged

to consider the effect that compelled discovery would have

on “the values protected by the First Amendment, [even]

though [these values were] entitled to no constitutional

privilege.” ’ Matter of Roche, supra at 636, quoting Herbert

v. Lando, 441 U.S. 153, 180 (1979) (Powell, J., concurring).

The ‘needless disclosure of confidential relationships,’

Matter of Roche, supra at 637, is, therefore, to be avoided.”

Sinnott v. Boston Retirement Bd., 402 Mass. at 586.

90a

Appendix F

Developing common law protection for news reporters’

confidential sources of information. In 1985 the Supreme

Judicial Court refused to adopt rules which would provide

for an evidentiary privilege for news reporters’ sources of

information, advocating instead a common law approach as

“more likely to result in principles that are flexible enough

to maintain an appropriate balance between the competing

interests involved.” Petition for the Promulgation of Rules

Regarding the Protection of Confidential News Sources &

Other Unpublished Information (hereafter Petition for

Promulgation of Rules ), 395 Mass. 164, 171 (1985). The

court there stated that under common-law principles already

developed, a party seeking to avoid disclosure must first

“make some showing that the asserted damage to the free

flow of information is more than speculative or theoretical.”

Id. at 172, citing Matter of Roche, 381 Mass. at 635, and

Matter of Pappas, 358 Mass. 604, 612 (1971), aff'd. sub

nom. Branzburg v. Hayes, 408 U.S. 665 (1972). Only then

will the court go on to balance “the public interest in every

person’s evidence and the public interest in protecting the

free flow of information,” in order to determine whether

disclosure should be prevented. 395 Mass. at 172, citing

Commonwealth v. Corsetti, 387 Mass. 1, 5-6 (1982).

The evidence required to make “some showing” of a risk

to the free flow of information. The Supreme Judicial Court

has not discussed in detail the nature and extent of evidence

required to make “some showing” that disclosure poses a

risk to the free flow of information. In Petition for

Promulgation of Rules, it stated that there is no privilege for

information that has already been published. 395 Mass. at

172, citing Commonwealth v. Corsetti, 387 Mass. at 4-5.

9la

Appendix F

In an earlier case, the court intimated that the bald allegation

that disclosure of a news reporter’s confidential sources will

impede the free flow of information would not be enough to

satisfy this burden. See Matter of Pappas, 358 Mass. at 612.

The two most recent Supreme Judicial Court cases

concerning this matter, Sinnott v. Boston Retirement Bd., 402

Mass. 581 (1988), and Matter of a John Doe Grand Jury

Investigation, 410 Mass. 596 (1991), affirmed the Superior

Court’s grant of investigative news reporters’ motions to

quash subpoenas for disclosure of confidential sources,'° and

touched on the evidentiary requirements for meeting the test

of some showing that disclosure poses a risk to the free flow

of information (the “threshold showing”). In neither case did

the court appear to require a burdensome showing.

In Sinnott v. Boston Retirement Bd., supra, the court

commented only indirectly on this issue. Affirming the denial

of a motion to compel discovery of a Globe reporter’s sources

10. Earlier cases affirmed orders to disclose. See Matter of

Pappas, supra (a motion to quash a grand jury summons to a reporter

to testify about a visit to Black Panther headquarters was denied);

Dow Jones & Co. v. Superior Court, 364 Mass. 317 (1973) (a reporter

was obligated to identify the source of allegedly defamatory

statements quoted in a news article); Matter of Roche, 381 Mass.

624 (a reporter was ordered to testify at a deposition in a judicial

disciplinary action concerning sources of information for a television

investigative report on District Court judges); Commonwealth v.

Corsetti, 387 Mass. 1 (1982) (a reporter was ordered to testify at a

hearing on a motion to suppress evidence in an impending criminal

trial regarding a telephone conversation he had had with the

defendant).

92a

Appendix F

for an article concerning the Boston retirement board’s

alleged abuses in awarding pensions, 402 Mass. at 582-587,

it concluded that the Superior Court judge was warranted in

applying the balancing test. There was no discussion of the

nature of the threshold showing. /d. at 586. In its discussion

of the balancing test, however, the Supreme Judicial Court

appears to have embraced the view that forced disclosure of

investigative news reporters’ confidential sources of

information carries an inherent threat to the free flow of

information. “[T]he public interest in nondisclosure rest[s]

upon the concern that ‘the deterrent effect such disclosure is

likely to have upon future “undercover” investigative

reporting . .. threatens freedom of the press and the public’s

need to be informed.’ ” /d. at 587, quoting from von Bulow

v. von Bulow, 811 F.2d 136, 142-143 (2d Cir.), cert. denied

sub nom. Reynolds v. Von Bulow, 481 U.S. 1015 (1987).

Three years later, in Matter of a John Doe Grand Jury

Investigation, 410 Mass. 596 (1991), the court considered

the nature of a threshold showing. Doe affirmed a Superior

Court judge’s allowance of motions to quash grand jury

subpoenas issued to two news reporters for the purpose of

discovering the identities of their confidential sources

regarding a murder investigation. Jd. at 596-597. The motion

judge concluded that the reporters had met the threshold test.

The court thought the judge’s determination warranted, based

on his ultimate finding “that the reporters would not have

received the information they obtained if they had not

promised anonymity to their sources and that the reporters’

future news-gathering ability, both generally and in the case

being investigated by the grand jury, would be impaired if

they violated their promises.” Jd. at 600. The court did not

93a

Appendix F

comment further on the evidence required to meet the

threshold showing. Its brief treatment of the issue again may

signal the view that the court does not consider the initial

burden to be heavy."'

The defendants’ initial burden. In the case before us,

the Superior Court judge concluded that the defendants had

not shown that the disclosure of Knox’s confidential sources

would pose more than a speculative or theoretical risk to the

free flow of information. Our reading of the record is that

certain of the subsidiary findings on which the judge based

his ultimate one are not supported by the evidence.

The Superior Court judge found that Knox’s informants

do not continue to provide him with information, and that

Knox was not involved in a continuing investigation.

The extent and significance of Knox’s continuing relation

with his sources must be viewed in the context of his long-

term relationships with medical experts who provide him

information when called upon. Knox testified in his

deposition of June 11, 1996, that during his twenty-seven

years as a medical reporter he has cultivated numerous

sources in the medical community and has established

continuing relationships with experts upon whom he relies

for information in specialized areas. Among these sources

11. The court’s approach to the threshold test cannot be ascribed

simply to adherence to a deferential standard of review (see Sinnott v.

Boston Retirement Bd., 402 Mass. at 586), since it declined to defer to

the Superior Court judge when it reviewed his conduct of the balancing

test. It disagreed with the judge’s analysis of the evidence in that context

and supplanted his balancing test with its own. Matter of a John Doe

Grand Jury Investigation, 410 Mass. at 601.

94a

Appendix F

are individuals who have agreed to provide information only

upon the promise of confidentiality. If Knox were unable to

keep such promises, his future ability to gather and publish

information from these and other sources who wish to remain

anonymous would suffer. See Matter of a John Doe Grand

Jury Investigation, supra at 600.

With regard specifically to Knox’s confidential sources

for the series of articles at issue, Knox testified in a deposition

on May 7, 1998, after the issuance of the discovery order but

before the order for contempt and sanctions was issued, that

two of these confidential sources had subsequently provided

him with information concerning other matters.'?

We do not question the trial judge’s determination that

Knox was not actively engaged in a continuing investigation

at the time of trial. However, the record reflects that the board

of registration’s proceedings concerning the overdose

incident were ongoing at least as late as September, 1997;

there is no indication in the record that they have been

concluded. As these proceedings unfold, Knox will in all

likelihood report on further developments and may well turn

to his earlier confidential sources for information.

The judge further found that the information was given

to Knox over two and one-half years previously and

concerned an “isolated incident.” The characterization of the

chemotherapy overdosing as an “isolated incident” does not

12. Knox testified that one of these sources had provided him

with information during the spring of 1998, and the other, the person

who had given him the May 23, 1995, synopsis of Dana-Farber’s

internal investigation, had provided information in late 1996 or 1997.

95a

Appendix F

comport with the facts on the record. A report issued by Dana-

Farber documenting the results of two committee

investigations into the matter! indicates that the overdosing

had long-term repercussions and was of widespread public

importance.'* The investigators found structural deficiencies

in Dana-Farber’s requirements for research protocols, in its

clinical procedures, in its pharmacy’s procedures and

technology, and in its quality assurance program. According

to the report, Dana-Farber took extensive corrective actions

as a result of the investigators’ recommendations, and the

report itself was being disseminated both to clarify the

situation at Dana-Farber, and to “provid[e] other cancer care

providers with insights that may benefit patients and

institutions throughout the country.” In order to follow up

on the corrective measures taken by Dana-Farber or to report

on ways otiier institutions may have been affected, Knox

could seek information from the confidential sources he used

earlier.'° Compare Sinnott v. Boston Retirement Bd., 402

Mass. at 587 n.5.

13. The document, dated October 30, 1995, titled, “A Special

Report from the Board of Trustees and Administration of the Dana-

Farber Cancer Institute to its Various Constituencies,” presents the

results of investigations by an internal peer review committee and

an external peer review committee.

14. In dismissing Ayash’s privacy claims against the Globe

defendants, the Superior Court judge found that Knox’s reporting in

this case concerned events of “public concern” about health care

issues.

15. Th

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