Colligan v. Mary Hitchcock Memorial Hospital et al

Filing 67

///ORDER denying 56 Motion for Reconsideration, denying 57 Motion for Reconsideration re: 55 Order on Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
R. Lacey Colligan
v.

Civil No. 16-cv-513-JD
Opinion No. 2019 DNH 028

Mary Hitchcock Memorial
Hospital and Dartmouth Hitchcock Clinic

O R D E R
R. Lacey Colligan brought suit against Mary Hitchcock
Memorial Hospital and Dartmouth Hitchcock Clinic (“DartmouthHitchcock”), alleging discrimination based on her disability,
post-traumatic stress disorder, and state law claims for
negligent and intentional infliction of emotional distress,
defamation, and invasion of privacy.
for summary judgment.

Dartmouth-Hitchcock moved

The court granted that motion as to

Counts I, IV-VI, and VIII-X, but denied it as to Colligan’s
public accommodation discrimination (Counts II-III) and
negligent infliction of emotional distress (“NIED”) (Count VII)
claims.1

The court’s order contains a typographical error in its
conclusion. As stated in the body of the court’s order, the
motion for summary judgment was denied as to Count II (public
accommodation discrimination) and granted as to Count IV
(interference). This error has been corrected by order dated
January 31, 2019 (doc. no. 63).
1

Colligan moves for reconsideration of the summary judgment
order in Dartmouth-Hitchcock’s favor on her federal and state
interference claims (Counts IV-V).

Dartmouth-Hitchcock objects

to Colligan’s motion.
Dartmouth-Hitchcock also filed a motion for reconsideration
of the summary judgment order as to Colligan’s NIED claim.
Colligan objects to Dartmouth-Hitchcock’s motion.
Standard of Review
Reconsideration of an order “is an extraordinary remedy
which should be used sparingly.”

Palmer v. Champion Mortg., 465

F.3d 24, 30 (1st Cir. 2006) (internal quotation marks omitted).
To succeed, a movant must “demonstrate that the order was based
on a manifest error of fact or law . . . .”

LR 7.2(d).

Reconsideration is not “a vehicle for a party to undo its own
procedural failures” or a means to “advance arguments that could
and should have been presented to the district court prior to”
its decision.
Cir. 2006).

Iverson v. City of Boston, 452 F.3d 94, 104 (1st

As such, the court will not grant reconsideration

based on arguments that were not previously made or based on
arguments that were rejected in the prior order.

Biltcliffe v.

CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014).

2

Discussion
I.

Colligan’s Motion for Reconsideration

Colligan argues that the court erred by granting DartmouthHitchcock’s motion for summary judgment on her claims that
Dartmouth-Hitchcock interfered with her exercise of her right to
access Dartmouth-Hitchcock’s facilities contrary to 42 U.S.C.
§ 12203(b) and NH RSA § 354-A:11.

In support, she contends that

the court incorrectly found that “all the restrictions on [her]
access to Dartmouth-Hitchcock were imposed immediately after her
encounter on September 1, 2015”; that “it incorrectly assumed
Dartmouth-Hitchcock’s later requirement that Dr. Colligan must
be escorted to her appointments was the quickly-corrected
mistake of a security officer”; and that “it failed to recognize
that after Dr. Colligan filed her charges of discrimination,
Dartmouth-Hitchcock responded by stating that she could no
longer go to any of its facilities.”

Doc. 56-1 at 1-2.

Colligan also contends that the court incorrectly stated the
reason that she moved to Massachusetts.

Dartmouth-Hitchcock

responds, arguing that Colligan relies on facts that find no
support in the record and that the issues she raises are not
material to her interference claims.

3

A.

Timing of Dartmouth-Hitchcock’s Imposition of Access
Restrictions

As is stated in the summary judgment order, to establish a
claim for interference, a plaintiff must prove that “(1) she
engaged in, or aided others in engaging in, conduct protected by
the ADA; (2) she suffered an adverse action prohibited by
§ 12203(b); and (3) there was a causal connection between her
conduct and the adverse action.”

Doc. 55 at 23 (citing

Goldblatt v. Geiger, 867 F. Supp. 2d 201, 211 (D.N.H. 2012)).
The causal connection requires the plaintiff to show that the
defendant’s interference occurred when she was exercising an ADA
protected right or because she engaged in protected conduct.
Feeley v. New Hampshire, 2010 WL 4774274, at *5 (D.N.H. Aug. 20,
2010).
Colligan finds it significant that Dartmouth-Hitchcock did
not “immediately” impose the access restrictions on September 1,
the day of the incident with Nancy Birkmeyer.

She asserts that

Dartmouth-Hitchcock waited until the next day, September 2,
2015, to impose the restrictions in a letter.

Based on the

record evidence, however, Dartmouth-Hitchcock made its decision
to impose the restrictions on September 1.

Doc. 48-18 at 4.

In addition, it is unclear why the decision date makes any
difference in this case.

Colligan does not show or even argue

that she engaged in protected conduct after Dartmouth-Hitchcock

4

made its decision to impose the restrictions but before she
received the September 2 letter.

Therefore, for the purpose of

Colligan’s interference claim, the date of Dartmouth-Hitchcock’s
decision to impose the restrictions is not material.

Colligan

has not shown that the court erred in using the September 1 date
in the discussion regarding Colligan’s interference claim.
B.

Escort Requirement

Colligan also argues that the court erred in finding that
the restrictions never increased after they were initially
imposed.

She contends that the restrictions were increased when

a security officer2 “was advised” to provide her an escort to a
September 29, 2015, medical appointment.

She disputes

Dartmouth-Hitchcock’s characterization of that incident as a
“mistake” that was quickly corrected because Dartmouth-Hitchcock
did not acknowledge it until two months later.
On October 19, 2015, Colligan’s attorney sent DartmouthHitchcock a letter raising several issues about the events of
September 1, 2015, and Colligan’s termination.

Among those

issues, Colligan’s attorney noted the September 29, 2015,

Colligan takes issue
the official as a “security
merely a security officer,”
security.” Doc. 56-1 at 6.
argument that the officer’s
2

with the court’s characterization of
officer,” stating that he was “not
but a “‘Shift Supervisor’ for
Colligan makes no showing or
supervisory status is material.
5

incident with Dartmouth-Hitchcock’s security officers, stating
the following:
[O]n this visit, [Colligan] was advised that she could
not proceed directly to see her treatment provider but
had to present at Security.
When she presented at
Security, she was subjected to the distress of having to
stand in the hallway while her colleagues passed by.
Members of Security were loudly asking her to declare
where her appointment was scheduled. It was a visit to
her mental health provider and she was humiliated by
having to disclose this in this very public setting.
This caused her great emotional distress resulting in
her being sent to the emergency room.
Doc. 48-32 at 4.

In a letter dated December 7, 2015, Dartmouth-

Hitchcock provided an omnibus response to several of the issues
raised by Colligan’s attorney.

In this response, Dartmouth-

Hitchcock rejected Colligan’s characterization of the events of
September 29 but apologized for its security officers’
“confusion” about the necessity of having an officer escort
Colligan to her appointment and stated that “Dartmouth-Hitchcock
never intended to require Dr. Colligan to have a Security escort
to any appointment.”

Doc. 48-33 at 2.

Contrary to Colligan’s argument, the timing of DartmouthHitchcock’s response is not sufficient to create a genuine
dispute of fact about whether Dartmouth-Hitchcock imposed
increased restrictions on her based on the September 29
incident.

Furthermore, supporting Dartmouth-Hitchcock’s

explanation, the issue was isolated, occurring only on September
29.

Colligan attended appointments on September 14, 15, and 22
6

without incident.

As Colligan never sought treatment at

Dartmouth-Hitchcock after September 29, the issue did not
reoccur.
Nor does Colligan offer evidence from which a jury could
reasonably infer that the September 29 incident occurred because
Colligan engaged or wished to engage in protected conduct.
Colligan claims that an unidentified person3 advised the security
officer to require an escort on September 29 because “counsel
for Dr. Colligan demanded that Dartmouth-Hitchcock lift its
discriminatory restrictions on her access to healthcare.”
56-1 at 7.

Doc.

She provides no evidence, however, to show that her

demand had anything to do with the escort requirement.
Therefore, Colligan has not presented sufficient evidence to
create a genuine dispute about whether the escort requirement of
September 29 was designed by Dartmouth-Hitchcock to interfere
with Colligan’s protected rights.4

David Luther testified that Gary Dimick, a “day-shift
officer,” informed him that Colligan required an escort for her
appointment on September 29. Doc. 48-23 at 4. Luther did not
ascertain why Dimick believed that Colligan required an escort
or who, if anyone, told Dimick that Colligan required an escort.
Dimick’s testimony, if it was taken, is not before the court.
The missing links in Colligan’s evidence are fatal to her
argument that Dartmouth-Hitchcock’s security officers were told
to require Colligan to have an escort to her appointment because
her attorney submitted a demand letter.
3

Although the court finds that a genuine dispute of fact
does not exist about whether Dartmouth-Hitchcock intentionally
imposed an escort requirement to interfere with a protected
4

7

C.

Statements from Dartmouth-Hitchcock Personnel on Scope
of Restrictions

Colligan argues that Dr. Keith Loud’s September 23, 2015,
e-mail was a modification of the restrictions listed in the
September 2 letter.

In the e-mail, Loud stated that Colligan

could not conduct a presentation because he had been notified
that Colligan was “no longer allowed on the DHMC campus other
than [for] emergen[cy] care.”

Doc. 48-29 at 2.

Colligan

appears to contend that statement increased the restrictions
because Loud did not note the additional exception for scheduled
appointments.
After Colligan received Loud’s e-mail, however, she
communicated with her healthcare providers who informed her that
she could keep her scheduled medical appointments.

Furthermore,

Colligan was not prevented by security from attending her
scheduled medical appointment on September 29, 2015.

Instead,

Colligan reacted strongly to questioning by security, causing
her to become so upset that she required emergency treatment.
Colligan offers no evidence that she would have been denied
access to her scheduled medical appointments after September 29
had she sought to continue treatment at Dartmouth-Hitchcock.

right, that finding does not extend to any claim that DartmouthHitchcock negligently failed to ensure that its security
officers followed the restrictions listed in the September 2
letter.
8

Therefore, Colligan did not show that Loud’s e-mail modified the
restrictions listed in the September 2 letter.
Colligan contends that Dartmouth-Hitchcock again modified
the restrictions on March 15, 2016, pointing to an exchange that
occurred between her and another Dartmouth-Hitchcock security
officer.

According to Colligan, in response to her inquiry

about whether Dartmouth-Hitchcock’s “Aging Resource Center” was
considered part of Dartmouth-Hitchcock’s campus, the officer
stated: “You cannot go to any of our facilities.
employees there.”

Doc. 48-3 at 11.

We have

Colligan asked whether she

could call beforehand and attend a meeting at the Center, but
the officer replied that she “cannot enter [the Aging Resource
Center] building at all.”

Id.

Colligan appears to contend

that, by stating that Colligan could not go to any of DartmouthHitchcock’s facilities, the security officer revoked the
exceptions in the September 2 letter that allowed Colligan to
enter Dartmouth-Hitchcock property for emergency care and
scheduled appointments.
Considered in context, the security officer’s statement is
limited to Colligan’s ability to access the Aging Resource
Center and the general restriction on her access to DartmouthHitchcock’s property.

The security officer did not tell

Colligan that the exceptions in the September 2 letter for
emergency care and scheduled appointments had been revoked.
9

Therefore, Colligan did not show that the security officer’s
statement modified the restrictions detailed in the September 2
letter.
Furthermore, even if Loud’s e-mail or the security
officer’s statement could be construed to materially deviate
from the restrictions in the September 2 letter, Colligan failed
to show or argue that the security officer or Loud had the
authority to modify the restrictions.

Indeed, the September 2

letter told Colligan to direct all questions to the DartmouthHitchcock Office of General Counsel.
D.

Reason for Move to Massachusetts

Finally, Colligan argues that the court’s statement that
she moved to Massachusetts because of the embarrassment
resulting from the public knowledge of the September 1, 2015,
incident lacks evidentiary support.

Colligan correctly observes

that she presented evidence that she moved because of her and
her husband’s inability to access healthcare around Hanover, New
Hampshire.
The court considered this evidence in the context of
Colligan’s public accommodation claims, which were not dismissed
on summary judgment.

In rejecting Dartmouth-Hitchcock’s claim

that the public accommodation claims are moot, the court found
the evidence was material: “[Colligan] has offered evidence

10

suggesting that Dartmouth-Hitchcock’s restrictions deter her
from returning” to Hanover.

Doc. 55 at 18.

Colligan’s reason

for moving to Massachusetts, however, is not material to
Colligan’s interference claims, which are the subject of the
motion for reconsideration.
Colligan has not shown a manifest error of fact or law as
to the court’s granting of summary judgment in DartmouthHitchcock’s favor on her interference claims.

Colligan’s motion

for reconsideration is denied.
II.

Dartmouth-Hitchcock’s Motion for Reconsideration

In its motion for reconsideration, Dartmouth-Hitchcock
argues that the court incorrectly denied summary judgment on
Count VII, which is Colligan’s NIED claim.

Dartmouth-Hitchcock

asserts that the court’s summary judgment order on that claim is
based on manifest errors of law.

Colligan responds that

Dartmouth-Hitchcock belatedly expands the scope of its motion
for summary judgment to include arguments it never presented to
the court and that, in any event, the court’s legal conclusions
as to her NIED claim are correct.
A.

Preclusion by Court’s Findings on Employment
Discrimination

Dartmouth-Hitchcock argues that no genuine issue of
material fact can exist on Colligan’s NIED claim because the

11

court found, as a matter of law, that no discrimination occurred
when it granted summary judgment in Dartmouth-Hitchcock’s favor
on Colligan’s employment discrimination claim.
Hitchcock misunderstands the court’s order.

Dartmouth-

In granting

Dartmouth-Hitchcock’s motion for summary judgment on Colligan’s
employment discrimination claim, the court found that Colligan
failed “to establish that a reasonable factfinder would decide
that disability discrimination was the sole reason for her
termination.”

Doc. 55 at 14 (emphasis added).

Furthermore, the

court denied summary judgment on Colligan’s public accommodation
discrimination claim.

Therefore, the court did not exclude, as

a matter of law, the possibility that a jury could find that
discrimination occurred.5
Dartmouth-Hitchcock also argues, for the first time, that
Colligan has put forward insufficient evidence to support her
NIED claim to the extent it is based on discrimination rather
than breach of contract.

The court will not address this fact-

based argument because it was not raised in DartmouthHitchcock’s summary judgment motion.

See Biltcliffe, 772 F.3d

at 930.

For the purposes of the NIED claims, Colligan need not
prove discrimination that would violate the ADA. Instead, she
must prove that Dartmouth-Hitchcock negligently caused
foreseeable and serious mental and emotional harm accompanied
with objective physical symptoms. Tessier v. Rockefeller, 162
N.H. 324, 342 (2011).
5

12

B.

Cause of Action Arising from Breach of Contract

Dartmouth-Hitchcock contends, as it did in its motion for
summary judgment, that New Hampshire law forbids recovery of
emotional distress damages in claims arising from a breach of
contract.

Colligan responds that the court addressed this

argument in its summary judgment order and that she does not
base her claim on a breach of a contract.
In its motion for summary judgment, Dartmouth-Hitchcock
argued that “to the extent” Colligan’s emotional distress claim
was based upon an alleged breach of Colligan’s contract with
Dartmouth-Hitchcock, it was precluded by Crowley v. Glob.
Realty, 124 N.H. 814 (1984), Jarvis v. Prudential Ins. Co., 122
N.H. 648, 654 (1982), and Lawton v. Great Sw. Fire Ins. Co., 118
N.H. 607, 615 (1978).6

The court accepted Dartmouth-Hitchcock’s

legal proposition, but nevertheless found that DartmouthHitchcock was not entitled to judgment as a matter of law
because Colligan offered facts showing that her NIED claim was

Excluding citations, the following was DartmouthHitchcock’s argument on this point in its motion for summary
judgment: “Specifically to the extent that this claim is based
upon the termination of her LLC’s contract, that cannot be the
basis for negligent infliction of emotional distress. The New
Hampshire Supreme Court has repeatedly ‘stated that recovery of
damages for mental suffering and emotional distress is not
generally permitted in actions arising out of breach of
contract.’” Doc. 36-1 at 27.
6

13

not a breach of contract claim disguised as a tort claim.
Doc. 36-1 at 27; Doc. 55 at 28-29.
Elaborating on its argument, Dartmouth-Hitchcock now
suggests that an NIED claim is precluded if it arises from the
same circumstances as a potential breach of contract or from a
contractual relationship.

Dartmouth-Hitchcock bases its

position on the statement in Crowley that “recovery of damages
for mental suffering and emotional distress is not generally
permitted in actions arising out of breach of contract.”
N.H. 814, 817.

124

Dartmouth-Hitchcock’s expansive interpretation

of that rule, however, is undercut by Crowley itself.
In Crowley, the court applied the rule it took from Lawton
and Jarvis only as to the plaintiff’s breach of contract claim.
Id. (“The contract count presently before us falls within the
rule of Lawton and Jarvis, and thus the plaintiffs’ claim for
[emotional distress] damages must fail.”).

The plaintiff in

Crowley also brought tort claims for intentional and negligent
misrepresentation.

Id.

Even though the tort claims arose from

the same circumstances as the contractual relationship, the
court did not apply the Lawton and Jarvis rule to bar recovery
of emotional distress damages.

See id.7

Therefore, contrary to

To be sure, the court concluded “that the plaintiffs
cannot recover damages for mental and emotional distress in a
claim for negligent misrepresentation.” Id. at 818. The court,
however, barred such a recovery not because the
7

14

Dartmouth-Hitchcock’s argument, Crowley does not create a bar to
NIED claims in cases that merely involve a contractual
relationship.
Dartmouth-Hitchcock also takes issue with the court’s
statement in the summary judgment order that Colligan could base
her NIED claim on “the manner in which Dartmouth-Hitchcock
breached the contract,” but Dartmouth-Hitchcock fails to note
the next sentence, which clarifies and adds further context:
“In other words, Colligan’s claim focuses on the emotional
distress caused by Dartmouth-Hitchcock’s alleged discrimination,
not on the emotional distress caused by the loss of her
employment.”

Doc. 55 at 29.

The court thus found only that

Colligan’s NIED claim is not a breach of contract claim
disguised as a tort claim, as was the case in Lawton, for
example.

See 118 N.H. at 609, 615 (recasting insured’s claims

against insurer for “negligent” and “reckless” “failure to make
payment” on an insurance contract as breach of contract claims
and consequently rejecting recovery of emotional damages because
they “are not generally recoverable in a contract action”).

misrepresentation claim arose from a breach of contract, but
because New Hampshire only permits recovery for “actual
pecuniary loss” and consequential damages such as physical
injury in negligent misrepresentation claims. Id. Colligan
does not raise any misrepresentation claim in this case.
15

C.

Existence of NIED Claim Based on Discrimination

Dartmouth-Hitchcock asserts that New Hampshire would not
recognize any discrimination-based tort claim because an
adequate statutory remedy exists and because Colligan cannot
show that Dartmouth-Hitchcock breached any duty it owed to her.
Colligan responds that Dartmouth-Hitchcock did not present these
arguments in its motion for summary judgment, so they are
inappropriate for reconsideration.
Dartmouth-Hitchcock’s cursory recitation of New Hampshire
caselaw precluding recovery of emotional distress damages in
breach of contract claims was far from sufficient to raise a
question about whether a discrimination-based NIED claim is
viable under New Hampshire law.

In its summary judgment motion,

Dartmouth-Hitchcock never challenged whether New Hampshire
would, under these circumstances, recognize an NIED claim or
whether Colligan could show that Dartmouth-Hitchcock breached a
duty it owed to her.

Therefore, neither the court nor Colligan

had any reason to address those issues.
address them now.

The court declines to

See Biltcliffe, 772 F.3d at 930.

Dartmouth-Hitchcock claims that it could not have raised
these issues earlier.

Colligan, however, stated in her response

to Dartmouth-Hitchcock’s motion for summary judgment that her
NIED charge was not based on a breach of contract but on
Dartmouth-Hitchcock’s “conduct in relation to her mental
16

disabilities,” which includes alleged discrimination and is the
focal point of Colligan’s lawsuit.

Doc. 48 at 31.

In her

Amended Complaint, Colligan likewise alleged that the NIED claim
was based on Dartmouth-Hitchcock’s conduct in relation to her
disabilities.

Doc. 7 at 26.

Therefore, the nature of

Colligan’s claims was apparent when the motion was filed.
Conclusion
For the foregoing reasons, the court denies Colligan’s
motion for reconsideration (document no. 56) and DartmouthHitchcock’s motion for reconsideration (document no. 57).
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge

February 19, 2019
cc:

William E. Christie, Esq.
Natalie J. Laflamme, Esq.
Timothy John McLaughlin, Esq.
William D. Pandolph, Esq.
Christopher James Pyles, Esq.

17