Coon v. Southwestern Vermont Medical Center et al
Filing
72
OPINION AND ORDER: 62 MOTION to Strike and 70 MOTION to Gain All Records of JMH are DENIED; 7 , 29 , and 49 MOTIONS to Dismiss and alternative MOTIONS for Summary Judgment are GRANTED; 9 and 37 MOTIONS to Dismiss and alternative MOTIONS for Summary Judgment are GRANTED IN PART and DENIED IN PART. Signed by Judge John M. Conroy on 1/30/2014. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Donald J. Coon,
Plaintiff,
v.
Civil Action No. 2:13-cv-182
Southwestern Vermont Medical Center,
Shea Family Funeral Homes,
Lon McClintock, Esq.,
Defendants.
OPINION AND ORDER
(Docs. 7, 9, 29, 37, 49, 62, 70)
Plaintiff Donald J. Coon, proceeding pro se, brings this civil action against
Defendants Southwestern Vermont Medical Center (SVMC), Shea Family Funeral
Homes (Shea),1 and Lon McClintock, Esq. (Docs. 3, 17.2) Mr. Coon’s claims stem from
the death of his mother, Joan M. Hunt, while she was an SVMC patient; from Shea’s
actions following Ms. Hunt’s death; and from Attorney McClintock’s alleged breaches of
duties he owed to Mr. Coon during an investigation into Ms. Hunt’s death. In July 2013,
SVMC and Shea each filed a Motion to Dismiss or for Summary Judgment, asserting that
1
Shea notes that its proper corporate name is Shea Funeral Homes, Inc., but asserts that the
distinction is not material to any issue in this case. (Doc. 58-1 at 1 n.1.)
2
Mr. Coon filed his original Complaint on June 27, 2013. (Doc. 3.) He filed a notarized
“Suppl[e]mental Original Complaint” on July 31, 2013 (Doc. 17), which the Court allowed as a Rule
15(a)(1)(B) amendment on August 8, 2013 (Doc. 21).
Mr. Coon’s claims are time-barred under Vermont’s statute of limitations, that he lacks
standing to bring this action, and that he has failed to state a cause of action. (Docs. 7, 9.)
In an Order filed on August 6, 2013, the Court requested supplemental memoranda
of law on issues relating to the statute of limitations and Mr. Coon’s standing to bring this
action. (Doc. 18.) SVMC and Shea filed renewed motions and supplemental memoranda
(Docs. 29, 37), and Mr. Coon filed responses (Docs. 40, 41). In an Order filed on
October 9, 2013, the Court converted SVMC and Shea’s Motions into Motions for
Summary Judgment. (Doc. 52.) In accordance with the Court’s Order, SVMC and Shea
each filed statements of facts and memoranda of law. (Docs. 54, 54-1, 58, 58-1). Mr.
Coon filed “final” responses on November 15 and 19, 2013, each of which includes
statements of facts. (Docs. 60, 61.)3
Attorney McClintock has also filed a Motion to Dismiss or for Summary
Judgment. (Doc. 49.) Mr. Coon has filed a response (Doc. 50), and Attorney
McClintock has filed a reply (Doc. 55). Mr. Coon filed a “final” response on
November 8, 2013. (Doc. 59.) Mr. Coon also filed a “Motion to Gain All Records of
[Joan M. Hunt]” on January 13, 2014. (Doc. 70.) The Court held a hearing on all
pending motions on January 15, 2014.
All parties have consented to direct assignment to the undersigned Magistrate
Judge. (Docs. 4, 10, 11, 48.) For the reasons that follow, SVMC’s Motion for Summary
Judgment (Docs. 7, 29) is GRANTED; Shea’s Motion (Docs. 9, 37) is GRANTED IN
3
SVMC has filed a Motion to Strike Mr. Coon’s statement of facts for failure to include citations
to the record, and because some of Mr. Coon’s alleged “facts” are really legal conclusions. (Doc. 62.)
The Court DENIES the Motion to Strike as unnecessary. The Court handles all of those issues using the
procedures detailed in Fed. R. Civ. P. 56.
2
PART and DENIED IN PART; and Attorney McClintock’s Motion (Doc. 49) is
GRANTED. SVMC’s Motion to Strike (Doc. 62) is DENIED; Mr. Coon’s Motion to
Gain All Records (Doc. 70) is DENIED.
Background
Although Defendants’ pending Motions are now motions for summary judgment,
the facts presented by the parties in the Motions are focused primarily on the issues raised
in those Motions. It is therefore helpful—for context—to begin by summarizing the
allegations in the original and Amended Complaint.4 The facts for the purposes of the
summary judgment Motions are set forth as necessary in the discussion below; they are
drawn from the parties’ statements and other materials in the record, and are undisputed
except where noted.5
Mr. Coon alleges the following. On or about January 25, 2010, Mr. Coon’s
mother, Joan M. Hunt, was assaulted and robbed at her home in New York. (Doc. 3 at 1–
2, 4; Doc. 17 at 1.) The assailant was Joanne Becker (Doc. 3 at 4),6 who is Mr. Coon’s
4
Ordinarily, an amended complaint supersedes the original and renders it of no legal effect. Int’l
Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Here, however, Mr. Coon’s Supplemental
Amended Complaint (Doc. 17) omits the “Case Background” section that appears in his original
Complaint (Doc. 3 at 1–3). Because it is necessary to refer to the “Case Background” in the original
Complaint to understand Mr. Coon’s factual allegations, and given Mr. Coon’s pro se status, the Court
refers to both the original Complaint and the Amended Complaint for purposes of reciting Mr. Coon’s
factual allegations.
5
Mr. Coon contends that, if the Court disagrees with his arguments against summary judgment,
he should be entitled to conduct discovery. (E.g., Doc. 59 at 12; Doc. 60 at 10; Doc. 61 at 13.) However,
as to the facts material to the issues discussed below, the Court concludes that Mr. Coon has not shown
that he is unable to present facts necessary to justify his opposition. See Fed. R. Civ. P. 56(d).
6
In its August 16, 2013 Order, the Court suggested that the assailant was not Ms. Becker, but
was instead someone else. (Doc. 18 at 1.) In fact, Mr. Coon alleges that it was Ms. Becker who beat Ms.
Hunt at her home in New York. (Doc. 3 at 4.)
3
half-sister and Ms. Hunt’s daughter (id. at 3).7 Two days later, Ms. Becker went to
“check on” Ms. Hunt, expecting to find her dead. (Doc. 3 at 2; Doc. 17 at 1–2.) Instead,
Ms. Becker found Ms. Hunt critically injured but alive, and transported her to SVMC.
(Doc. 3 at 2; Doc. 17 at 1–2.) Ms. Hunt was in stable condition when Mr. Coon left the
hospital on the night of January 27, 2010. (Doc. 3 at 2.)
When Mr. Coon came back, Ms. Hunt had been injured a second time, again by
Ms. Becker. (Id. at 3; Doc. 17 at 2.) Ms. Becker had “held her hand over [Ms. Hunt’s]
mouth and nose[,] smothering her.” (Doc. 3 at 3.) Ms. Hunt died on or about January 30,
2010 as a result of Ms. Becker’s assaults. (Id. at 3, 5.) The SVMC nurse assigned to care
for Ms. Hunt, who happened to be Mr. Coon’s cousin,8 allowed the second assault to
occur by leaving Ms. Hunt alone with Ms. Becker for hours in Ms. Hunt’s hospital room.
(Doc. 3 at 2–5.)
Ms. Becker killed Ms. Hunt for Ms. Becker’s own financial gain. (Id. at 3.)
“Immediately after” Ms. Hunt’s hospitalization and death, Ms. Becker “t[ook] over [Ms.
Hunt’s] identity,” wearing Ms. Hunt’s clothes and altering her hair to look like Ms. Hunt.
(Id. at 3, 4.)
After Ms. Hunt’s death, Mr. Coon and his sister, Kim Diotte, twice requested an
autopsy, but “someone at [SVMC]” removed that request. (Doc. 3 at 5; Doc. 17 at 5.)
Then, “in the middle of the night” on or about January 30, 2010, and at the direction of
7
In the course of discussing his mother in his original Complaint, Mr. Coon remarks that Ms.
Becker “has a different father.” (Doc. 3 at 3.) In other filings, he notes that Ms. Becker is not his “sister,”
but that she is his half-sister. (Doc. 40 at 7, 13, 21; Doc. 41 at 6, 9.)
8
In its August 16, 2013 Order, the Court referred to the SVMC nurse as Ms. Hunt’s cousin.
(Doc. 18 at 1.) In fact, Mr. Coon describes the nurse as his cousin. (Doc. 3 at 2.)
4
Ms. Becker, Mark Shea of Shea Family Funeral Homes took Ms. Hunt’s body to
Defendant Shea, which then cremated Ms. Hunt’s remains without the consent of Mr.
Coon or his sister. (Doc. 3 at 5; Doc. 17 at 3, 5.) According to Mr. Coon, Ms. Becker
“had and has no right to speak for our family then or now.” (Doc. 3 at 5; Doc. 17 at 3.)
Thereafter, Mr. Shea produced bills that he said were owed by Ms. Becker, “over
charging and recharging for [the] same supposedly owed bill.” (Doc. 3 at 5; Doc. 17 at
5.) On or about May 7, 2012, Mr. Shea stole the grave marker off Ms. Hunt’s cemetery
plot in Buskirk, New York, and also damaged Ms. Hunt’s and other Hunt family
members’ graves. (Doc. 3 at 6; Doc. 17 at 5.) He did this on May 7, 2012—before the
Memorial Day festivities—specifically so that Ms. Hunt’s family would see the damage
on Memorial Day weekend. (Doc. 3 at 6; Doc. 17 at 5.)
Law enforcement commenced a criminal investigation into Ms. Hunt’s death.
(See Doc. 3 at 5; Doc. 17 at 3.) In an attempt to prevent anyone from discovering the
hospital’s role in Ms. Hunt’s death, SVMC would not release Ms. Hunt’s medical
records, notwithstanding the fact that Mr. Coon had signed for the records and law
enforcement had obtained subpoenas for those records. (Doc. 3 at 5, 7; Doc. 17 at 3, 6–
7.) Lon McClintock, Esq.—who had been Mr. Coon’s attorney for two years—became
involved in the investigation on SVMC’s behalf, and divulged privileged attorney-client
information to SVMC, and conspired with SVMC to obstruct the murder investigation.
(Doc. 17 at 3–4.)
Mr. Coon, who is a New York resident (Doc. 3 at 1, 7; Doc. 17 at 1, 7), is Ms.
Hunt’s oldest son. (Doc. 3 at 5; Doc. 17 at 5.) He “has suffered a big loss” as a result of
5
his mother’s death, including “no parental guidance, no trips, [and] no dinners . . . .”
(Doc. 3 at 5; Doc. 17 at 3.) Mr. Coon seeks at least $2.5 million in damages from
SVMC, and an additional $2.5 million in damages from Shea. (Doc. 17 at 6–7.)
Discussion
I.
Diversity Jurisdiction
Mr. Coon claims that the Court has jurisdiction pursuant to 28 U.S.C. § 1332 on
account of the parties’ differing states of residence. (Doc. 17 at 1.) SVMC does not
dispute that the Court has diversity jurisdiction. (Doc. 7 at 3; Doc. 29 at 3.) Attorney
McClintock’s Motion (Doc. 49) does not raise any jurisdictional issue. Shea maintains
that the Court should dismiss most of Mr. Coon’s claims against Shea on lack of
standing, statute of limitations, or other grounds, and that Mr. Coon’s remaining claims
for wrongful conversion of a grave marker and overcharge or mischarge of fees for
funeral services should be dismissed for lack of subject matter jurisdiction because the
amount in controversy is less than § 1332’s minimum of $75,000. (Doc. 37 at 4.) The
Court addresses Shea’s jurisdictional argument in the discussion that follows.
II.
Mr. Coon’s Wrongful-Death Claim Against SVMC
A.
Standing
The Court begins with SVMC’s argument that Mr. Coon lacks standing to bring
his wrongful-death claim because he has not been appointed the personal representative
of his mother’s estate, which SVMC asserts is a requirement under both Vermont and
New York wrongful death statutes. (Doc. 7 at 3; Doc. 12 at 2; Doc. 29 at 6.) Mr. Coon
maintains that he “[is] the Estate” because by law “the oldest son handles [the] Estate.”
6
(Doc. 8 at 2.) He says that he “is always the person Surrogate Court sends bill collectors
who want to sue [him]” and that his “is [the] only address they have on Mom’s file.”
(Doc. 40 at 11.) Mr. Coon confirms that he did pay fees to file in Surrogate’s Court, but
that after eight court hearings it was determined that all of Ms. Hunt’s assets were stolen,
missing, or gone, and that he was told to continue to handle the estate’s business “same as
I have done.” (Doc. 47 at 1–2; see also Doc. 60 at 11; Doc. 60-3 at 1.) He asserts that he
alone does all the work on the property that his mother owned, and that he pays all of the
estate’s bills and handles all of the estate’s lawsuits. (Doc. 60 at 9.)
Mr. Coon does not dispute the following additional facts asserted by SVMC and
Shea. In November 2011, Mr. Coon filed a petition for letters of administration with the
Washington County (New York) Surrogate’s Court. (Doc. 54-8.) The Surrogate’s Court
has not, however, issued letters of administration to Mr. Coon, and has not appointed him
administrator or executor of his mother’s estate. Mr. Coon has not applied to any Probate
Court in the State of Vermont for ancillary letters of administration regarding his
mother’s estate.
Both Vermont and New York law require that wrongful-death actions be brought
by the personal representative of the decedent. See 14 V.S.A. § 1492(a) (wrongful-death
action “shall be brought in the name of the personal representative of such deceased
person”); N.Y. Est. Powers & Trusts Law § 5-4.1(1) (“The personal representative, duly
appointed in this state or any other jurisdiction, of a decedent who is survived by
distributees may maintain an action to recover damages for a wrongful act, neglect or
default which caused the decedent’s death . . . .”).
7
Mr. Coon does not contend that any court has issued to him letters to administer
his mother’s estate. Instead, he relies on New York’s “new surrogate laws” for the
proposition that he “doesn’t need to be appointed” by a court. (Doc. 13-1 at 2.) Indeed,
there is a process in New York for the settlement of “small estates” without court
administration. See N.Y. Surr. Ct. Proc. Act §§ 1301–1312. However, a “voluntary
administrator” under that process has no power to enforce a claim for wrongful death. Id.
§ 1306(3). Thus to the extent that Mr. Coon asserts that he is a “voluntary administrator”
of his mother’s estate, that assertion is insufficient to establish his power to maintain a
wrongful-death action against SVMC. Because no court has appointed Mr. Coon as the
personal representative of his mother’s estate, he cannot maintain the wrongful-death
action.9
Mr. Coon’s wrongful-death claim should therefore be dismissed without prejudice
for lack of capacity. See Estate of Vaiselberg ex rel. Vaiselberg v. Snow, No. 02 Civ.
6235(DC), 2003 WL 1878248, at *1 (S.D.N.Y. Apr. 14, 2003) (dismissing employment
discrimination case without prejudice for lack of capacity because the plaintiff, although
he was the “voluntary administrator” for his mother’s estate, lacked capacity to bring
such a claim for “personal injuries”). For the reasons discussed below, Mr. Coon’s
wrongful-death claim should also be dismissed because, on the present facts, it is timebarred.
9
This conclusion obviates the need to consider SVMC’s additional argument that, even if Mr.
Coon were appointed administrator in New York, he still lacks capacity to maintain the wrongful-death
claim because he has not obtained ancillary letters of administration in Vermont. (Doc. 29 at 6.) The
Court returns to that issue, however, in the course of discussing Mr. Coon’s claims against Shea.
8
B.
Statute of Limitations
SVMC and Mr. Coon both agree that the Court should refer to Vermont law in
order to determine whether Mr. Coon’s claim is time-barred. The Court concurs. “A
federal court sitting in diversity jurisdiction applies the choice of law rules of the forum
state.” Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 433 (2d
Cir. 2012). In Vermont, choice-of-law issues in tort actions are resolved using the
approach set forth in the Restatement (Second) of Conflict of Laws. Martineau v.
Guertin, 170 Vt. 415, 417, 751 A.2d 776, 778 (2000) (citing Amiot v. Ames, 166 Vt. 288,
292, 693 A.2d 675, 677 (1997)). For statute-of-limitations issues, it is necessary to refer
to §§ 142 and 143 of that Restatement. The gist of § 142 is that the local law of the
forum determines whether the action is barred by the statute of limitations, except as
stated in § 143. Restatement (Second) of Conflict of Laws § 142 cmt. a (1971). Section
143, in turn, provides that “[a]n action will not be entertained in another state if it is
barred in the state of the otherwise applicable law by a statute of limitations which bars
the right and not merely the remedy.” Id. § 143. For the reasons that follow, the Court
concludes that Mr. Coon’s action is time-barred in Vermont.
Vermont law provides, in pertinent part, that a wrongful-death action must be
commenced:
within two years from the discovery of the death of the person . . . . If the
death of the decedent occurred under circumstances such that probable
cause is found to charge a person with homicide, the action shall be
commenced within seven years after the discovery of the death of the
decedent or not more than two years after the judgment in that criminal
action has become final, whichever occurs later.
9
14 V.S.A. § 1492(a). As Mr. Coon repeatedly notes (Doc. 40 at 6, 13–14; Doc. 60 at 5),
section 1492(e) provides: “[n]otwithstanding subsection (a) of this section, if the death of
the decedent was caused by an intentional act constituting murder, the action may be
commenced within seven years after the discovery of the death of the decedent.”
Despite Mr. Coon’s own belief that Ms. Becker murdered Ms. Hunt, the
alternative accrual date and seven-year limitations periods do not apply.10 No probable
cause has been found to charge a person with homicide for Ms. Hunt’s death. Neither has
there been any determination that her death was caused by an intentional act constituting
murder.11 Mr. Coon apparently asserts that this Court should make a determination about
whether Ms. Becker murdered Ms. Hunt. (E.g., Doc. 65 at 2.) But determining whether
a “murder” has occurred is a criminal matter inappropriate for resolution in this civil
case.
The Court concludes that the date of accrual in this case was January 30, 2010—
the date that Mr. Coon discovered his mother’s death. Mr. Coon argues that he did not
learn “why how and who did the de[e]d”—i.e., the cause of her death—until October
10
Mr. Coon’s assertion that a seven-year period applies (Doc. 60 at 9, ¶ 5) is a conclusion of law,
not a statement of fact, and thus cannot be utilized on a summary-judgment motion. 10B Charles Alan
Wright et al., Federal Practice and Procedure Civil § 2738 (3d ed. 2013).
11
There is no statute of limitations on murder in either Vermont or New York. N.Y. Crim. Proc.
§ 30.10(2)(a); 13 V.S.A. § 4501(a). Thus it is possible that at some future date a finding of probable
cause or an adjudication of murder might be entered. However, the Court’s analysis is constrained to the
facts as they exist now, and thus the Court’s conclusion that Mr. Coon’s wrongful-death action is timebarred is without prejudice to a future showing that probable cause has been found or that a criminal case
for Ms. Hunt’s murder has resulted in a conviction.
10
2011. (Doc. 40 at 15.)12 That assertion is immaterial because the plain language of
§ 1492(a) sets the accrual date as the time the plaintiff discovers the death of the
decedent; the clock starts ticking whether or not the plaintiff knows the cause. Thus, at
present, absent any tolling of the limitations period, January 30, 2012 was the deadline
for filing a wrongful-death case. As noted above, Mr. Coon filed this case on
June 27, 2013.
Mr. Coon makes a number of arguments for equitably tolling the limitations
period. “[T]he burden of proving that tolling is appropriate rests on the plaintiff.”
Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir.
2002) (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). In determining whether
equitable tolling is applicable, the Court considers whether Mr. Coon: “(1) has ‘acted
with reasonable diligence during the time period [he] seeks to have tolled,’ and (2) has
proved that the circumstances are so extraordinary that the doctrine should apply.”
Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80–81 (2d Cir. 2003)
(quoting Chapman, 288 F.3d at 512). Equitable tolling is generally considered
appropriate: (1) “where the plaintiff actively pursued judicial remedies but filed a
defective pleading during the specified time period”; (2) “where plaintiff was unaware of
his or her cause of action due to misleading conduct of the defendant”; or (3) “where a
plaintiff’s medical condition or mental impairment prevented [him] from proceeding in a
12
Mr. Coon asserts that the statute started to run on October 18, 2011. (Doc. 60 at 9, ¶ 4.) That
is a conclusion of law, not an assertion of fact.
11
timely fashion.” Id. (internal quotation marks and citations omitted). Here, Mr. Coon
argues that all three circumstances are present.
Mr. Coon notes that he filed suit against SVMC in the United States District Court
for the Northern District of New York on May 13, 2013, but that the Magistrate Judge
said that the case against SVMC belonged in Vermont. (Doc. 40 at 16; Doc. 40-2.) It is
true that equitable tolling can apply when a plaintiff timely filed a complaint in the wrong
court. Haekal v. Refco, Inc., 198 F.3d 37, 43 (2d Cir. 1999) (citing Burnett v. N.Y. Cent.
R.R. Co., 380 U.S. 424 (1965)).13 Because Mr. Coon has only filed the first page of his
complaint from the New York matter, it is not entirely clear whether he asserted
substantially the same claims against SVMC as he now asserts against SVMC in this
case. However, even assuming that Mr. Coon’s filing in New York is operative for
statute-of-limitations purposes, it would only make the filing date May 13, 2013—still
well after January 30, 2012. To determine whether a filing on May 13, 2013 was within
the limitations period, it is necessary to consider Mr. Coon’s other tolling arguments.
Mr. Coon argues that SVMC’s failure to deliver Ms. Hunt’s hospital records was
misleading conduct that effectively tolled the statute of limitations. (Doc. 8 at 3; Doc.
13-1 at 1.) According to Mr. Coon, “we didn’t know anything . . . we didn’t find out
[until] Oct[ober] 2011 when [SVMC] released the records. The statute of limitations
started then and it hasn’t been 2 years since the release of her [SVMC] hospital records.”
13
There is also a similar statutory tolling provision in Vermont. See 12 V.S.A. § 558(a)(2).
Whether it might apply to a wrongful-death claim is a potentially complicated issue. See Schulman v.
Saloon Beverage, Inc., No. 2:13-cv-193, 2014 WL 127760 (D. Vt. Jan. 14, 2014) (analyzing whether
§ 558 applies to a dram shop claim). The Court need not resolve that question in this case because § 558
only applies if the original action was timely commenced.
12
(Doc. 8 at 3; see also Doc. 13 at 4.)14 The parties’ allegations concerning SVMC’s
production of records are discussed in greater detail below, but are largely immaterial for
purposes of the statute of limitations. Here, Mr. Coon himself admits that as early as
February 3, 2010, he believed that Ms. Becker had killed Ms. Hunt, and that SVMC was
at fault because his cousin, the SVMC nurse, was involved. (Doc. 13 at 1; Doc. 16-2;
Doc. 40 at 14; Doc. 59 at 10, ¶ 3.)15 In short, nothing that SVMC did after
February 3, 2010 prevented Mr. Coon from becoming aware of his cause of action; by his
own admission he was already aware of it at that time. Even assuming that SVMC took
longer than necessary to produce the documentation that Mr. Coon thought would help
prove his case, that would not have prevented Mr. Coon from filing his Complaint.
Finally, Mr. Coon argues that he was hospitalized eleven times from
November 14, 2012 through May 2013 and that during that period he could not have
“looked into or done anything to find out what these [defendants] were up to.” (Doc. 131 at 1.) He asserts that the statute of limitations was tolled until June 2013 when he was
sufficiently recovered to file suit. (Id.) However, SVMC correctly points out that Mr.
Coon’s alleged medical incapacitation between November 2012 and May 2013 could not
toll a limitations period that otherwise expired on January 30, 2012. (Doc. 29 at 11.)
14
Oddly, Mr. Coon also alleges that, when he was able to review the medical record, he found it
“was no good” because “the chain of command was broken.” (Doc. 59 at 10, ¶ 12.) Thus it is unclear
how the medical records might have proved SVMC’s liability directly.
15
There is a dispute about whether Mr. Coon shared his belief in a telephone conversation with
Attorney McClintock on that date. Mr. Coon says that he did. (Doc. 59 at 10, ¶ 3.) Attorney McClintock
has no recollection of any such telephone conversation. (See Doc. 54-5 at 9, ¶ 54.) That dispute and
related matters are discussed in greater detail below, but it is not material to the statute-of-limitations
analysis.
13
More recently, Mr. Coon has supplied two unsworn letters purportedly from
“Marvin Day RPA” of the Granville Family Health Center. (Doc. 40-1; Doc. 51-1.) The
letters assert that the Granville Family Health Center is Mr. Coon’s primary health care
provider, recount hospitalizations in 2011, 2012, and 2013, and state that Mr. Coon was
not healthy enough to be able to handle the business or estate of his mother during the
entire period from 2010 through about June 2013. (Doc. 40-1; Doc. 51-1.) The Court
cannot consider those letters, however, because they would not be admissible at trial. See
Lyons v. Lancer Ins. Co., 681 F.3d 50, 57 (2d Cir. 2012) (“In ruling on a motion for
summary judgment, the district court may rely on any material that would be admissible
at trial.”) (internal quotation marks omitted; emphasis added); see also Capobianco v.
City of New York, 422 F.3d 47, 55 (2d Cir. 2005) (“[U]nsworn letters from physicians
generally are inadmissible hearsay that are an insufficient basis for opposing a motion for
summary judgment.”). Mr. Coon has therefore failed to meet his burden to prove
medical equitable tolling.
For all of the above reasons, the Court concludes that Mr. Coon’s wrongful-death
claim against SVMC should be dismissed without prejudice. Having reached that
conclusion, the Court does not address SVMC’s additional argument that the claim fails
on its merits because SVMC is not liable for Ms. Becker’s alleged criminal acts. The
14
Court also need not decide whether Vermont recognizes loss-of-parental-consortium
claims brought by adult children.16
III.
Mr. Coon’s Remaining Claims against SVMC and His Claims Against
Attorney McClintock
Mr. Coon asserts the following claims against SVMC in addition to wrongful
death: failure to respond to a criminal investigative subpoena (Doc. 17 at 3, ¶ 5A),
conspiracy to withhold medical records (id. at 3–4), invasion of privacy (id. at 4, ¶ 7), and
fraud (id. at 4–5, ¶ 10). Mr. Coon brings similar claims against Attorney McClintock, as
well as a malpractice claim. It appears that Mr. Coon also alleges a tort claim based on
the alleged removal of his requests for an autopsy. (Doc. 3 at 5; Doc. 17 at 3.) Each of
these claims is the subject of SVMC and Attorney McClintock’s Motions, and the Court
treats them together here. For all of these alleged torts, the Court applies Vermont law.
See Restatement (Second) of Conflict of Laws § 145.17 The following additional facts
relate to those claims and are undisputed except where noted.18
16
The Court asked the parties to supply briefing on that issue in its August 6, 2013 Order. (Doc.
18 at 5.) The Court perceived that it might be possible to argue that, pursuant to Clymer v. Webster, 156
Vt. 614, 596 A.2d 905 (1991), although Vermont’s Wrongful Death Act permits parents to recover for
damages for loss of companionship resulting from the death of their adult child (the facts of the Clymer
case), the converse might not also be true. SVMC does not make that argument (see Doc. 29 at 12), and it
is in any case moot.
17
All parties agree that Vermont law should apply, and it appears that Vermont is the state that
has the most significant relationship to the occurrence and the parties in this case.
18
Citations to the record are supplied throughout the factual background that follows. This
single statement of facts relates to Mr. Coon’s remaining claims against SVMC as well as his claims
against Attorney McClintock. A single statement of facts makes sense here both because of the nature of
the claims against SVMC and Attorney McClintock, and because many of the materials that SVMC cites
in its Statement of Undisputed Material Facts (Doc. 54-1) are duplicates of materials cited by Attorney
McClintock in his Statement of Undisputed Material Facts (Doc. 49-1).
15
Attorney McClintock worked as an attorney for Vermont Legal Aid between 1982
and 1988. (Doc. 54-5 at 1, ¶ 3.) It is undisputed for present purposes that, while working
for Vermont Legal Aid, Attorney McClintock represented Mr. Coon in 1985 or 1986
regarding a claim for Social Security disability or SSI benefits, although Attorney
McClintock maintains that he has no records and no specific recollection of representing
Mr. Coon during that time or of the details of Mr. Coon’s case or his personal or family
circumstances. (See id. at 1–2, ¶¶ 4–6, id. at 6, ¶ 32; see also Doc. 59 at 10, ¶ 1.)
According to Mr. Coon, during that time, Attorney McClintock had access to Mr. Coon’s
records relating to his medical and mental health as well as to his family’s dynamics.
(See Doc. 16-2; Doc. 17 at 4, ¶ 6B.) Attorney McClintock entered private practice in
1988 and his records show that he did not subsequently represent Mr. Coon at any time.
(See Doc. 54-5 at 3, ¶ 12.)
It is undisputed that in 2010 and 2011, SVMC was a client of Attorney
McClintock’s law firm, and that Attorney McClintock’s responsibilities for the firm
included advising the SVMC Medical Records Department on whether or how to respond
to requests for medical records. (Doc. 54-2 at 2, ¶ 4; Doc. 54-5 at 3, ¶¶ 16–17.)
According to Mr. Coon, he called Attorney McClintock on or about February 3, 2010,
and they talked about Ms. Hunt’s death at SVMC, SVMC’s employment of Mr. Coon’s
cousin as Ms. Hunt’s nurse, and Mr. Coon’s planned legal suit against SVMC. (Doc. 162; Doc. 50 at 1; Doc. 59 at 10, ¶ 3.) Attorney McClintock has no recollection of any such
telephone conversation. (See Doc. 54-5 at 9, ¶ 54.) He also asserts that if he had talked
to Mr. Coon on that date, he would have said that he could not provide representation
16
because of the duties that he owed to SVMC, and would have recommended that Mr.
Coon consult another attorney. (See id. at 11, ¶ 71.)
According to Mr. Coon’s sworn “final respon[s]e,” he remained in contact with
Attorney McClintock after February 3, 2010, but at no time during 2010 or 2011 did
Attorney McClintock advise Mr. Coon that he was representing SVMC. (Doc. 59 at 10,
¶¶ 5, 6, 9.) Other affidavits that Mr. Coon has filed also report correspondence between
Mr. Coon and Attorney McClintock in 2010 and 2011. Julia Ruth Coon and Mr. Coon’s
wife Riza Ali Coon both state in affidavits that “during the time after Mom[’]s death in
2010 & 2011 I answered the telephone for Donald [f]our different times[.] It was
[Attorney] Lon McClintock. He and Donald talked for long periods of time[;] Donald
had to send him stuff.” (Doc. 61-1 at 6; Doc. 64 at 5.)
Mr. Coon has filed copies of purported email exchanges between himself and
Attorney McClintock in 2010 and 2011. (Doc. 51-2.)19 Curiously, contrary to Mr.
Coon’s assertions that Attorney McClintock did not disclose that SVMC was a client,
some of the emails upon which Mr. Coon himself relies contain exactly such disclosures.
(E.g., Doc. 51-2 at 1, 6 (purported February 11, 2010 email from Attorney McClintock
stating that SVMC “is a sometimes client”); id. at 2, 5 (purported July 8, 2010 email from
Attorney McClintock’s firm stating “Attorney McClintock is unable to help you with this
matter . . . because he has handled previous matters for [SVMC]”).) Other purported
19
Those “Purported Emails” were the subject of this Court’s Order dated October 30, 2013, in
which the Court found that Attorney McClintock had offered evidence that put the authenticity of the
emails in legitimate dispute, and authorized limited expedited ex parte discovery to help resolve the issue.
(Doc. 57 at 5.) For the reasons that follow, the Court concludes that it is unnecessary to inquire further on
this topic.
17
emails that Mr. Coon has offered appear to suggest that Attorney McClintock was
interested in Mr. Coon’s case against SVMC, was gathering information, and was
seeking more information from Mr. Coon.20
Attorney McClintock maintains that Mr. Coon’s only communications with him
about potential claims against SVMC were an email Mr. Coon sent on October 9, 2011, a
follow-up phone message on October 11, 2011, and emails that Mr. Coon sent on July 17
and July 25, 2013. (Doc. 54-5 at 8–11, ¶¶ 47–77.) Attorney McClintock asserts that he
replied to the October 9, 2011 email on October 11, 2011, and stated that SVMC was a
client and that he could not represent Mr. Coon. (Id. at 9, ¶ 56; Doc. 49-10.) He says that
he did not reply to the phone message, (Doc. 54-5 at 10, ¶ 61), and that his paralegal
replied to the July 17, 2013 email and stated that Attorney McClintock could not help Mr.
Coon in a case against SVMC because of a conflict of interest, (id. at 10, ¶ 68; Doc. 4912). Finally, Attorney McClintock says that he did not reply to the July 2013 emails.
(Doc. 54-5 at 11, ¶ 75.)
According to Mr. Coon, he was at SVMC “six different times between January 30
2010 and Sept 10 2011 trying to get [Ms. Hunt’s] records released.” (Doc. 40-3 at 1.)
SVMC asserts that it has no record of any request from Mr. Coon personally for his
mother’s medical records. (Doc. 54-2 at 2, ¶ 6.) It is undisputed, however, that on or
20
(See Doc. 51-2 at 9) (purported February 21, 2010 email to Mr. Coon posing questions about
the case and inquiring whether he has obtained legal counsel yet); (id. at 8) (purported March 5, 2010
email to Mr. Coon listing questions for him); (id. at 7) (purported June 14, 2010 email to Mr. Coon
stating, “I haven’t found anything new. I will keep my eyes [and] ears open and let you know what I find
out”); (id. at 5) (purported July 8, 2010 email stating that Attorney McClintock “has many more questions
of you”); (id. at 4) (purported July 12, 2011 email listing series of questions to Mr. Coon); (id. at 3)
(purported October 12, 2011 email stating, “I will call you in the morning to discuss the things I see in
this”).
18
about March 18, 2011, SVMC received a subpoena from the Washington County (New
York) District Attorney’s Office requesting production of Ms. Hunt’s medical records.
(Doc. 54-4 at 1, ¶ 4; Doc. 54-5 at 3, ¶ 13; Doc. 54-9.) The subpoena was forwarded to
Attorney McClintock’s firm for review for compliance with Vermont and federal law.
(Doc. 54-5 at 3–4, ¶¶ 13, 18). On March 24, 2011, Attorney McClintock advised SVMC
not to produce Ms. Hunt’s medical records because there was no authorization signed by
a personal representative accompanying the request. (Doc. 54-5 at 4, ¶ 21; Doc. 54-10.)
Attorney McClintock advised the District Attorney’s Office to supply a valid
authorization, and on April 1, 2011 Attorney McClintock received an authorization
signed by Mr. Coon. (Doc. 54-5 at 4–5, ¶¶ 22–24; Doc. 54-11.) On that same date,
Attorney McClintock wrote to the District Attorney’s Office to advise that the release
was incomplete because it did not include the name and address of the person to whom
the records were to be released. (Doc. 54-5 at 5, ¶¶ 26–27; Doc. 54-12.)
On or about May 18, 2011, SVMC received a second subpoena dated
May 12, 2011 from the Washington County (New York) District Attorney’s Office.
(Doc. 54-2 at 2, ¶ 5; Doc. 54-5 at 6, ¶ 29; Doc. 54-13 at 1.) The second subpoena
included a medical authorization form signed by Mr. Coon, as well as instructions to send
the information to the Washington County District Attorney’s Office at its Fort Edward,
New York address. (Doc. 54-2 at 2, ¶ 5; Doc. 54-4 at 2, ¶ 5; Doc. 54-5 at 6, ¶ 30; Doc.
54-13 at 2.) On May 18, 2011, Attorney McClintock advised SVMC that the records
could be released after someone had reviewed them for any information that could be
degrading to the deceased. (Doc. 54-4 at 2, ¶ 5; Doc. 54-5 at 6–7, ¶ 33; Doc. 54-14.)
19
Ms. Hunt’s entire medical record was produced to the Washington County (New
York) District Attorney’s Office on September 20, 2011. (Doc. 54-2 at 3, ¶ 8; Doc. 54-4
at 2, ¶ 6.) The Court does not have the medical record before it, but according to Mr.
Coon, the medical record “was no good” because “the chain of command was broken.”
(Doc. 59 at 10, ¶ 12.)
A.
Failure to Respond to a Criminal Investigative Subpoena; Conspiracy
to Withhold Medical Records
Mr. Coon asserts that SVMC either failed to disclose Ms. Hunt’s medical records,
or delayed doing so, and that as a result the criminal investigation was impeded and Ms.
Becker was able to “get away with murder.” (Doc. 17 at 3.) That claim fails for multiple
reasons. Initially, at least insofar as Mr. Coon seeks to attribute delay to Attorney
McClintock, there is no indication that Attorney McClintock’s involvement was designed
to accomplish anything other than to ensure the proper handling of Ms. Hunt’s medical
records in compliance with state and federal law. See 45 C.F.R. § 164.508 (generally
requiring a “covered entity” to obtain a valid authorization prior to disclosing “protected
health information”); 12 V.S.A. § 1612 (patient’s privilege). In fact, the evidence is that
Attorney McClintock facilitated the disclosure of the records by advising the District
Attorney’s Office regarding the necessary steps to obtain the release.
Moreover, it is undisputed that SVMC did disclose the records on
September 20, 2011. As noted above, there is no statute of limitations on murder in New
York or Vermont. N.Y. Crim. Proc. § 30.10(2)(a); 13 V.S.A. § 4501(a). Thus, even
assuming that SVMC did delay production of the records, it could not have caused a
20
limitations problem for any murder prosecution, and Mr. Coon has not shown that any
alleged delay has otherwise prejudiced such a prosecution.
Even if SVMC did delay producing the records and the delay did impact a murder
prosecution, Mr. Coon could not obtain a remedy in this civil action. In Vermont, failure
to comply with a subpoena may be remedied by the contempt power of the court for
which the subpoena issued. See V.R.C.P. 45(e). The subpoena did not issue for this
Court, nor is Mr. Coon a party to the subpoena. A civil action for disobeying a subpoena
is authorized pursuant to 12 V.S.A. § 1623, but it is only available to “the party which
issued the subpoena or on whose behalf it was issued.” To the extent that Mr. Coon
alleges obstruction of justice, that is a criminal charge that cannot be brought by a private
citizen. See Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86 (2d Cir.
1972) (provisions of criminal law could not be enforced by any civil action); State v.
Parker, 151 Vt. 378, 379, 560 A.2d 383, 385 (1989) (executive branch is the “exclusive
charging authority”).
Because there is no underlying tort stemming from the alleged delay, Mr. Coon’s
conspiracy claim also fails. See Akerley v. N. Country Stone, Inc., 620 F. Supp. 2d 591,
600 (D. Vt. 2009) (noting that, for a civil action for conspiracy, the parties to the alleged
conspiracy must have an agreement, and must do something in furtherance thereof that is
itself unlawful); Montgomery v. Devoid, 2006 VT 127, ¶ 20, 915 A.2d 270, 278 (noting
“existence of a primary violation” as an essential element of a civil conspiracy claim).
21
B.
Invasion of Privacy or Malpractice
Mr. Coon alleges that SVMC “invaded [Plaintiff] Coon’s privacy with
McClintock’s help.” (Doc. 17 at 4.) The Court understands his claim to be that Attorney
McClintock disclosed privileged information to SVMC, including Mr. Coon’s medical
status and family dynamics (which Mr. Coon says that Attorney McClintock learned
from his representation of Mr. Coon in the 1980s), as well as his plan to sue SVMC and
his legal theories (which Attorney McClintock purportedly learned about during the
disputed February 3, 2010 telephone call). According to Mr. Coon, Attorney McClintock
“sold me out for a bigger better payday with [SVMC].” (Doc. 40-3 at 2.) As noted
above, Attorney McClintock maintains that he has no recollection of Mr. Coon’s personal
and family circumstances from his representation of Mr. Coon in the 1980s. Attorney
McClintock also asserts that, “[p]rior to the filing and service of this suit, I have not
divulged to SVMC any information that Mr. Coon[] provided me, regarding his, and/or
his mother’s estate[]s, alleged potential claims against SVMC, or any of its employees.”
(Doc. 54-5 at 11, ¶ 77.)
Vermont recognizes the tort of invasion of privacy as defined in the Restatement
(Second) of Torts. See Harris v. Carbonneau, 165 Vt. 433, 439, 685 A.2d 296, 300
(1996) (citing Restatement (Second) of Torts § 652A (1977)). But Mr. Coon has failed to
come forward with admissible evidence that would support such a claim. His own
speculation about what Attorney McClintock might have done with any information that
Mr. Coon might have supplied is insufficient to create a factual issue. See Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (“A party
22
opposing summary judgment does not show the existence of a genuine issue of fact to be
tried merely by making assertions that are conclusory . . . or based on
speculation . . . .”).21
Mr. Coon also claims that Attorney McClintock is liable for malpractice and for
violating the Vermont Rules of Professional Conduct. Specifically, Mr. Coon argues that
Attorney McClintock breached his duty by working for both him and for SVMC, and by
disclosing confidential or privileged information to SVMC. (Doc. 17 at 4, ¶ 9). Those
claims suffer from a number of infirmities. First, Mr. Coon has not offered any expert
testimony regarding the standard of care, breach, or causation. See Estate of Fleming v.
Nicholson, 168 Vt. 495, 497, 724 A.2d 1026, 1028 (1998) (noting that professional
negligence is generally demonstrated using expert testimony to prove the requisite
elements of the claim). His claim that Attorney McClintock violated a rule of
professional conduct or committed malpractice requires expert evidence. See Deptula v.
Kane, No. 2008-139, 2008 WL 4906905, at *2 (Vt. Nov. 2008) (unpublished mem.)
(expert evidence was required to prove that attorney’s conduct violated a rule of
professional conduct or constituted malpractice).
Second, although Mr. Coon refers to the Vermont Rules of Professional Conduct,
those Rules “are not designed to be a basis for civil liability.” V.R.P.C. Scope, ¶ [20].
21
Moreover, even if Mr. Coon’s assertions did create a factual issue, they do not amount to
invasion of privacy. The only potentially applicable provision of the Restatement (Second) of Torts on
that matter is § 652D (“Publicity Given to Private Life”), but that provision requires the tortfeasor to give
“publicity”—i.e., to make the matter public “by communicating it to the public at large, or to so many
persons that the matter must be regarded as substantially certain to become one of public knowledge.”
Restatement (Second) of Torts § 652D cmt. a (1977). Here, Mr. Coon only asserts that Attorney
McClintock communicated information to SVMC—he has offered no evidence that the allegedly
communicated information became known by the public at large.
23
Indeed, although this Court has found no Vermont case on point, courts in several other
jurisdictions have held that a violation of a code of ethics standard does not give rise to a
cause of action for legal malpractice. See, e.g., Hooper v. Gill, 557 A.2d 1349, 1352
(Md. Ct. Spec. App. 1989) (collecting cases); see also Kathleen J. McKee, Annotation,
Admissibility and Effect of Evidence of Professional Ethics Rules in Legal Malpractice
Action, 50 A.L.R. 5th 301 § 5 (1997) (collecting cases). Even if the Court were to
consider the Rules of Professional Conduct as possible evidence of malpractice, Mr.
Coon’s malpractice claims would still fail for the reasons described below.
The Court concludes that Attorney McClintock’s prior representation of Mr. Coon
did not mean that Attorney McClintock’s representation of SVMC breached a duty owed
to Mr. Coon as a former client. Rule 1.9 concerns attorneys’ duties to their former
clients, but only prohibits representing a party adverse to the former client when the
representation is “in the same or a substantially related matter.” Matters are
“substantially related” if they “involve the same transaction or legal dispute or if there
otherwise is a substantial risk that confidential factual information as would normally
have been obtained in the prior representation would materially advance the client’s
position in the subsequent matter.” V.R.P.C. 1.9 cmt. [3]. The social security claim that
Attorney McClintock worked on for Mr. Coon in the 1980s does not involve the same
transaction or legal dispute as the work that Attorney McClintock did for SVMC
reviewing requests for medical records. For similar reasons, the fact that Attorney
McClintock represented Mr. Coon in the 1980s did not create a concurrent conflict of
interest with his representation of SVMC because there was no significant risk that the
24
representation of SVMC would be materially limited by Attorney McClintock’s
responsibilities to Mr. Coon as a former client. See V.R.P.C. 1.7(a)(2).
Neither has Mr. Coon come forward with evidence to support a conclusion that
Attorney McClintock agreed to represent both SVMC and Mr. Coon as adverse parties
with respect to Mr. Coon’s claims against SVMC. Rule 1.7(a)(1) generally prohibits
attorneys from representing a client where the representation is directly adverse to
another client. Although Mr. Coon asserts that he and Attorney McClintock had
numerous conversations regarding the case without Attorney McClintock ever
mentioning that SVMC was his client, the Court concludes that there is no genuine or
triable issue as to whether any attorney-client relationship was formed between Mr. Coon
and Attorney McClintock after Ms. Hunt’s death.
On summary judgment, the Court ordinarily does not “weigh evidence or assess
the credibility of witnesses.” Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.
1996). However, the Second Circuit has held that
in the rare circumstance where the plaintiff relies almost exclusively on his
own testimony, much of which is contradictory and incomplete, it will be
impossible for a district court to determine whether “the jury could
reasonably find for the plaintiff,” . . . and thus whether there are any
“genuine” issues of material fact, without making some assessment of the
plaintiff’s account.
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). In Rojas v. Roman Catholic Diocese of
Rochester, the Second Circuit explained:
25
[W]e do not suggest that district courts should routinely engage in
searching, skeptical analyses of parties’ testimony in opposition to
summary judgment. . . . However, in certain extraordinary cases, where
“the facts alleged are so contradictory that doubt is cast upon their
plausibility, the court may pierce the veil of the complaint’s factual
allegations and dismiss the claim.” [Jeffreys, 426 F.3d] at 555 (internal
quotation marks and alteration omitted). To hold otherwise, and require
district courts to allow parties to defeat summary judgment simply by
testifying to the allegations in their pleadings (or, as here, to facts not
alleged in their pleadings), would “license the mendacious to seek windfalls
in the litigation lottery.” Arrington v. United States, 473 F.3d 329, 344
(D.C. Cir. 2006) (Brown, J., concurring in part and dissenting in part).
Rojas, 660 F.3d 98, 106 (2d Cir. 2011) (per curiam).
Here, as described above, Mr. Coon himself has offered contradictory evidence
about whether Attorney McClintock disclosed that SVMC was a client and whether he
agreed to represent Mr. Coon against SVMC. The affidavits of Julia Ruth Coon and Riza
Ali Coon do not establish that the alleged phone calls and correspondence in 2010 and
2011 were at all related to potential claims against SVMC. Mr. Coon’s own testimony
regarding contact with Attorney McClintock during that time is contrasted against the
documents that he himself has offered, as well as Attorney McClintock’s own competent
and persuasive evidence, including the undisputed October 11, 2011 and July 17, 2013
emails unambiguously advising Mr. Coon that Attorney McClintock could not represent
him. The Court concludes that there is no triable dispute as to whether Attorney
McClintock agreed to represent Mr. Coon in a suit against Attorney McClintock’s client
SVMC. No reasonable juror would conclude that he did, and thus Attorney McClintock
cannot have breached a duty of loyalty in that respect.
26
The Court also concludes that there is no triable issue as to whether Mr. Coon was
a “prospective client” under Rule 1.18. To the extent that Mr. Coon shared information
with Attorney McClintock after Ms. Hunt’s death, the information shared was done so
unilaterally without any reasonable expectation that Attorney McClintock would be
willing to form a client-lawyer relationship. (E.g., Doc. 54-5 at 9, ¶ 51; Doc. 54-15.) To
each communication from Mr. Coon, Attorney McClintock responded that he could not
represent Mr. Coon, or chose not to respond at all. Attorney McClintock’s continued
representation of SVMC was therefore not a breach of duty to Mr. Coon as a “prospective
client.” See V.R.P.C. 1.18 cmt. [2].
Mr. Coon also asserts that Attorney McClintock’s alleged disclosures of
confidential or privileged information to SVMC was a breach of duty. (Doc. 17 at 4,
¶ 9). It is true that Attorney McClintock owed Mr. Coon a duty not to reveal information
relating to the representation in the 1980s. V.R.P.C. 1.9(c)(2). However, Mr. Coon’s
claim that Attorney McClintock breached that duty fails for the reason stated above with
respect to the invasion-of-privacy claim: Mr. Coon has not come forward with admissible
evidence in support. Mr. Coon’s claim that Attorney McClintock shared with SVMC
information about Mr. Coon’s plan to sue SVMC and his legal theories—presumably in
violation of V.R.P.C. 1.18(b)—is conclusory in nature and fails for multiple reasons. The
Court has already concluded that Mr. Coon is not entitled to protection as a “prospective
client.” Even if he were, Mr. Coon has not presented any admissible evidence that
Attorney McClintock did in fact disclose any such information, or that any such
disclosure harmed Mr. Coon.
27
C.
Fraud
Mr. Coon alleges that SVMC and Attorney McClintock “did with intention
withhold all [Joan M. Hunt] records with intent to run out what they believed was the
statute of limitations on any civil litigation, committing a fraud against [Plaintiff] Coon.”
(Doc. 17 at 5.) In Vermont, “[t]he essential elements of a fraud claim are (1) intentional
misrepresentation of a material fact; (2) that was known to be false when made; (3) that
was not open to the defrauded party’s knowledge; (4) that the defrauded party acts in
reliance on that fact; and (5) is thereby harmed.” Estate of Alden v. Dee, 2011 VT 64,
¶ 32, 35 A.3d 950, 960–61. The misrepresentation element can be satisfied by a showing
of fraudulent concealment, which is the “concealment of facts by one with knowledge, or
the means of knowledge, and a duty to disclose, coupled with an intention to mislead or
defraud.” Lay v. Pettengill, 2011 VT 127, ¶ 14, 38 A.3d 1139, 1144.
Mr. Coon cannot prove that he was harmed by any alleged fraudulent
concealment. As described in the statute-of-limitations analysis above, any delay in
producing the records did not imperil Mr. Coon’s civil action on statute-of-limitations
grounds. Mr. Coon himself admits that as early as February 3, 2010, he believed SVMC
was “at fault” and that his cousin, the SVMC nurse, was involved. (Doc. 13 at 1; Doc. 40
at 14.) In short, nothing that SVMC did after February 3, 2010 prevented Mr. Coon from
becoming aware of his cause of action; by his own admission he was already aware of it
at that time. Even assuming that SVMC took longer than necessary to produce the
documentation, that would not have prevented Mr. Coon from filing his Complaint.
28
D.
Interference with or Removal of Autopsy Request
As SVMC points out (Doc. 12 at 5 n.4.), it is not clear from the Amended
Complaint whether Mr. Coon’s statement that “someone” at SVMC removed the autopsy
request is an attempt to state an additional tort claim. To the extent that it is, SVMC
argues that it must be dismissed. The Court agrees. The harm that Mr. Coon says
resulted from the alleged interference with or removal of the autopsy request is that law
enforcement was prevented from bringing a criminal action for the alleged murder of his
mother. In short, Mr. Coon alleges obstruction of justice. As noted above, that is a
criminal charge that cannot be brought by a private citizen. See Conn. Action Now, 457
F.2d at 86 (provisions of criminal law could not be enforced by any civil action); Parker,
151 Vt. at 379, 560 A.2d at 385 (executive branch is the “exclusive charging authority”).
IV.
Shea’s Motion
As the Court previously recognized, Mr. Coon asserts the following causes of
action against Shea: wrongful cremation, intentional infliction of emotional distress
(“IIED”), wrongful conversion of a grave marker, and overcharge or mischarge of fees
for funeral services. (Doc. 18 at 2.) As with the claims against SVMC and Attorney
McClintock, the Court applies Vermont law to most of Mr. Coon’s claims against Shea.
See Restatement (Second) of Conflict of Laws § 145.22 Shea seeks dismissal or summary
judgment on each of Mr. Coon’s claims against it.
22
Mr. Coon generally agrees that Vermont law should apply, but asserts that New York law
applies with respect to the alleged desecration of graves at Mr. Coon’s family’s cemetery in Buskirk, New
York, and that as a result Shea cannot invoke 18 V.S.A. § 5233. (Doc. 25 at 5.) That issue is discussed
below.
29
A.
Wrongful Cremation
Mr. Coon’s wrongful-cremation claim is a special case of a claim for infliction of
emotional distress. See W. Page Keeton et al., Prosser and Keeton on Torts § 12, at 63
(5th ed. 1984) (tort claims alleging the intentional mishandling of dead bodies are in
reality the intentional infliction of emotional distress); id. § 54, at 362 (tort claims
alleging the negligent mishandling of corpses are claims for the negligent infliction of
emotional distress). The Court therefore rejects Shea’s contention (Doc. 37 at 2) that Mr.
Coon lacks standing to bring the wrongful-cremation claim.
The following additional facts are material to the statute-of-limitations issue and to
the analysis under 18 V.S.A. § 5233, and are undisputed except where noted. Ms. Hunt
died at 12:22 a.m. on January 30, 2010. (See Doc. 58-3.) On that date, Dr. Keith Collins
of SVMC signed a “Preliminary Report of Death” indicating that Ms. Hunt had died of
natural causes, and that no autopsy was performed. (Doc. 58-4.) After Ms. Hunt passed
away, Mark Shea received a call from SVMC, and subsequently transported the body
from the hospital to the funeral home. (Doc. 58-2 at 1, ¶¶ 3–4.) At that time, Mr. Shea
was not aware that Mr. Coon existed, and was not aware of any request that an autopsy
be performed. (Id. ¶ 5.)
Also on January 30, 2010, Ms. Becker provided Shea with a signed “Cremation
and Disposition Authorization.” (See Doc. 58-2 at 1, ¶ 6; Doc. 58-5.) In that document,
Ms. Becker identified herself as Ms. Hunt’s daughter, and certified that she did not have
“actual knowledge of any living person who has a superior right to act as the Authorizing
Agent.” (Doc. 58-5 at 1.) Mr. Shea also states that “Ms. Becker was listed as the
30
hospital contact person for the decedent, was the beneficiary of her life insurance policy,
and it was my understanding that she lived with the decedent as well.” (Doc. 58-2 at 1,
¶ 7.)
On February 1, 2010, the medical examiner issued Shea a permit to cremate Ms.
Hunt’s body. (Doc. 58-7.) The permit stated: “Being sufficiently informed as to the
causes and circumstances of the death of the above described decedent, permission is
hereby granted to cremate the body as requested.” (Id.) February 1, 2010 is also the date
that Ms. Hunt’s death certificate was issued. (Doc. 58-3.) The death certificate indicates
that Ms. Hunt’s body was cremated, and further indicates a “Disposition Date” of
February 1, 2010. (Id.)
Some affidavits supplied by Mr. Coon suggest that the cremation of Ms. Hunt’s
body may not have actually been performed until after February 3, 2010. According to
Mr. Coon, Ms. Hunt’s body “was cremated according to [the] crematory on Feb 6 2010.”
(Doc. 61 at 4); (see also Doc. 61-5 at 2, ¶ 3) (“She wasn[’]t cremated till Feb 6 2010 in
Troy . . . .”). However, Mr. Coon’s assertion as to what the crematory told him is
inadmissible hearsay. Although it is unclear how she might have personal knowledge,
Julia Ruth Coon says that, as of February 3, 2010, the cremation had not yet happened.
(Doc. 61-1 at 4.) Confusingly, Riza Ali Coon’s affidavit suggests that the cremation
occurred prior to February 3, 2010. (See Doc. 64 at 3) (stating that, on February 3, 2010,
Mr. Shea had already cremated Ms. Hunt’s body, and that all medical evidence was
gone).
31
There are conflicting assertions about when Mr. Coon discovered that his mother’s
body was cremated. Shea’s position is that Mr. Coon knew of the cremation shortly after
it occurred. According to Mr. Coon, “we weren[’]t told right away that the autopsy
wasn[’]t done.” (Doc. 15-3 at 2.)23 Julia Ruth Coon asserts the same. (See Doc. 61-1 at
4) (“We didn[’]t know about autopsy have been [sic] cancelled till Oct 2011.”). Oddly,
Mr. Coon also says that, on February 3, 2010, he met with Mr. Shea and asserted that it
was a mistake for Shea to have Ms. Hunt’s body. (Doc. 61 at 3.) Riza Ali Coon states
that the February 3, 2010 meeting with Mr. Shea “didn[’]t go well” in part because Mr.
Shea “had already cremated [Ms. Hunt’s body].” (Doc. 64 at 3.)
In Vermont, for the purposes of limitations on actions, a claim for damages
resulting from emotional distress is an “injury to the person” within 12 V.S.A. § 512, and
thus must be commenced within three years after the cause of action accrues. Fitzgerald
v. Congleton, 155 Vt. 283, 293, 583 A.2d 595, 601 (1990). Under § 512(4), such a
“cause of action shall be deemed to accrue as of the date of the discovery of the injury.”
The Court concludes that the only evidence on the accrual question is that Mr. Coon
knew as early as February 3, 2010 that his mother’s body was cremated and that no
autopsy had been performed.24 Mr. Coon’s wrongful-cremation claim should have been
23
In an unsworn document, Mr. Coon asserts that “we didn[’]t find out about [Ms. Hunt] not
being autopsied [until the] [W]ash[ington] [Coun]ty [New York] [District Attorney] found out when he
contacted [SVMC].” (Doc. 41 at 4.)
24
Julia Ruth Coon’s assertion that she did not know about the autopsy’s cancellation until
October 2011 conflicts with Riza Ali Coon’s statement that the February 3, 2010 meeting with Mr. Shea
did not go well because the cremation had already occurred. In light of those conflicting materials offered
by Mr. Coon himself, the Court concludes that there is no triable issue on the accrual question.
32
filed no later than February 3, 2013. His filing on June 27, 2013 is barred by the statute
of limitations.
There is no basis for tolling the statute of limitations for filing the wrongfulcremation claim against Shea. Mr. Coon’s May 13, 2013 suit against SVMC in the
United States District Court for the Northern District of New York did not involve Shea,
and in any case would only move the effective filing date to May 13, 2013—still well
after February 3, 2013. There is no allegation or evidence that Shea did anything to
prevent Mr. Coon from discovering or filing his cause of action. Finally, as described
above, there is no admissible evidence that would support a medical equitable tolling
conclusion.
In addition, the wrongful-cremation claim is barred by 18 V.S.A. § 5233, which
provides as follows:
A funeral director or crematory operator shall not be subject to civil
liability or subject to disciplinary action for carrying out the disposition of
the remains if he or she relied in good faith on a funeral service contract or
authorization or for following the instructions of an individual whom the
funeral director or crematory operator reasonably believes or believed holds
the right of disposition.
According to Shea, Mr. Coon “makes no allegations that would support the finding that
Defendant Shea did not act in good faith when he cremated the Decedent.” (Doc. 9 at 3.)
Mr. Coon’s position on this issue is as follows (with some minor edits for clarity):
Mr. Shea isn’t covered with free immunity under 18 V.S.A. § 5233.
Plaintiff Coon has shown Mark Shea is the very exact reason why the
funeral industry is so looked at watched and why all state government[s] try
to regulate how and what they do. He has no immunity in this, he has done
multiple things: lied on state surrogate court forms, stating all expenses
were paid in [Ms. Hunt’s] funeral, then repeatedly hitting up other relatives
33
for more and more monies. He is a bad seed and the court must in the
interest of justice allow [the] case to go forward to trial on the facts.
(Doc. 15 at 6.)
Mr. Coon’s reiteration of his other claims against Shea and his general assertion
that Mr. Shea is a “bad seed” is insufficient to overcome Shea’s affidavit which
establishes that Shea either relied on a funeral service contract or authorization or
followed the instructions of an individual whom it reasonably believed held the right of
disposition. (Doc. 58-2.) Mr. Coon asserts that Ms. Becker did not have the right to
authorize a cremation, but the inquiry under § 5233 is what Shea reasonably believed
based on the information available to it. Here, Shea relied in good faith on the
“Cremation and Disposition Authorization” that Ms. Becker signed on January 30, 2010.
Shea did not and could not have known about Mr. Coon’s autopsy request.25 Moreover,
Shea believed that Ms. Becker held the right of disposition, and that belief was
reasonable in light of Ms. Becker’s representations, including her relationship to Ms.
Hunt as well as her status as the hospital contact person and life insurance beneficiary.
Mr. Coon suggests that, when he raised questions about Ms. Becker’s authority at
the February 3, 2010 meeting with Shea, Shea could have placed a phone call to halt the
cremation. Shea nevertheless still had a good faith basis for relying on the signed
authorization from Ms. Becker. Moreover, there was nothing that Shea could have done.
The evidence in the record is that Ms. Hunt’s body had already been cremated by
25
In an affidavit, Riza Ali Coon suggests that “maybe Shea removed the requests for [an]
autopsy.” (Doc. 64 at 3.) Such speculation is insufficient to avoid summary judgment. See Major
League Baseball Props., Inc., 542 F.3d at 310 (“A party opposing summary judgment does not show the
existence of a genuine issue of fact to be tried merely by making assertions that are conclusory . . . or
based on speculation . . . .”).
34
February 3, 2010. The official documents list the date of disposition as February 1, 2010.
(E.g., Doc. 58-3.) The affidavits suggesting a February 6, 2010 date of cremation conflict
with other affidavits offered by Mr. Coon and are hearsay or do not appear to be based on
personal knowledge.
B.
Grave Desecration
As noted above, Mr. Coon asserts that New York law applies with respect to the
alleged desecration of graves at Mr. Coon’s family’s cemetery in Buskirk, New York,
and that as a result Shea cannot invoke 18 V.S.A. § 5233. (Doc. 25 at 5.) At oral
argument on January 15, 2014, counsel for Shea suggested that New York law might
indeed control. The Court agrees. “A federal court sitting in diversity jurisdiction
applies the choice of law rules of the forum state.” Forest Park Pictures, 683 F.3d at
433. In Vermont, choice-of-law issues in tort actions are resolved using the approach set
forth in the Restatement (Second) of Conflict of Laws. Martineau v. Guertin, 170 Vt. at
417, 751 A.2d at 778 (citing Amiot v. Ames, 166 Vt. at 292, 693 A.2d at 677). Pursuant
to § 146 of that Restatement, New York law should apply to the grave-desecration claim
because that is where the injury occurred.
Because New York law applies to this claim, 18 V.S.A. § 5233 is not available to
Shea. Section 5233 would not apply to the grave-desecration claim in any case, since
Shea’s actions underlying the claim do not constitute “carrying out the disposition of the
remains.” Moreover, since alleged desecration of Mr. Coon’s family members’ graves
occurred in May 2012, there is no limitations problem with this claim under New York’s
three-year statute of limitations. See N.Y. C.P.L.R. 214(5). In addition, as with his
35
emotional-distress claim based on wrongful cremation, Mr. Coon has standing to bring
his grave-desecration claim. See Mitchell v. Thorne, 32 N.E. 10 (N.Y. 1892) (“[T]he
heirs of a decedent, at whose grave a monument has been erected, or the person who
rightfully erected it, can recover damages from one who wrongfully injures or removes
it . . . .”).
Shea argues that the Court should decline to exercise supplemental jurisdiction
over Mr. Coon’s remaining state law claims (which the Court interprets to include his
grave-desecration claim) because they do not meet the $75,000 statutory amount-incontroversy requirement. (Doc. 37 at 4; Doc. 58 at 9.) However, the measure of
damages for such a claim is unclear at present. See Cooper v. Myer, 2007 VT 131, ¶ 12,
944 A.2d 915, 919 (mem.) (noting that the recoverable damages for IIED suits are “soft”
damages that are “not easily calculated,” and affirming a significant award for IIED); see
also Mitchell v. Stevenson, 677 N.E.2d 551, 564 (Ind. Ct. App. 1997) (affirming
significant award for IIED stemming from grave desecration). There are insufficient
facts at present to determine whether Mr. Coon’s grave-desecration claim meets the
$75,000 amount-in-controversy requirement specified in 28 U.S.C. § 1332. The Court
therefore DENIES Shea’s Motion as to that claim.
C.
Conversion of Grave Marker; Overcharge or Mischarge of Fees
Shea argues that Mr. Coon’s claim for conversion of a grave marker is moot
because the Complaint implicitly states that the marker has been returned to the grave
site. (Doc. 9 at 5.) Assuming that the Amended Complaint can be read as Shea says,
Shea has not called to this Court’s attention any law in Vermont or New York that
36
deviates from the proposition that the tort of conversion is complete when the defendant
takes, detains or disposes of the chattel. See W. Page Keeton et al., Prosser and Keeton
on Torts § 15, at 106 (5th ed. 1984). Mr. Coon’s conversion claim is not moot.
The provisions of 18 V.S.A. § 5233 do not aid Shea with respect to the conversion
and mischarge claims. Vermont law would not appear to apply to the conversion claim
for the same reason that it does not apply to the grave-desecration claim. See
Restatement (Second) of Conflict of Laws § 147. More importantly, Shea’s actions
underlying both the conversion and mischarge claims do not constitute “carrying out the
disposition of the remains.”
Shea contends that Mr. Coon lacks standing to assert his conversion and
mischarge claims because he has not been appointed the administrator or executor of Ms.
Hunt’s estate. (Doc. 37 at 6.) That argument also fails. As discussed above, it appears
that Mr. Coon is serving as the “voluntary administrator” for his mother’s estate.26
Although he has no power to enforce a claim for wrongful death or a claim for “personal
injuries to the decedent,” N.Y. Surr. Ct. Proc. Act § 1306(3), his claims for conversion of
a grave marker and for mischarge of fees do not fall into either of those prohibited
categories.
26
It is not entirely clear from the record whether Mr. Coon has actually complied with the
requirements for serving as a “voluntary administrator.” Specifically, New York law contemplates a
“short certificate” that constitutes evidence of a voluntary administrator’s qualification and authority,
N.Y. Surr. Ct. Proc. Act. § 1304(5), yet Mr. Coon has not filed any such certificate with this Court.
However, the procedure for qualifying as a voluntary administrator is not burdensome: no bond is
necessary, only an affidavit need be filed (accompanied by a $1 fee), and no order of the court or other
proceeding is required. Id. §1304(2)–(4). Here, in light of Mr. Coon’s assertions regarding the
proceedings in Surrogate’s Court and that he was told to continue handling the business of Ms. Hunt’s
estate, it seems likely that he is in fact the “voluntary administrator.”
37
In a related vein, Shea also suggests that Mr. Coon needs to obtain ancillary letters
of administration in Vermont in order to prosecute the claims of his mother’s estate in
Vermont. (Doc. 37 at 3.) This is a conflict-of-law issue; as to both the conversion (tort)
and mischarge (contract) claims, the Court resolves the issue using the approach set forth
in the Restatement (Second) of Conflict of Laws. Amiot, 166 Vt. at 292, 693 A.2d at 677.
Under that approach, a foreign executor or administrator may maintain an action
to enforce a claim belonging to the decedent only:
(1) when the defendant does not make seasonable objection, or
(2) when the claim is on a negotiable instrument, share certificate or
negotiable document of title in the possession of the foreign executor or
administrator, or
(3) when maintenance of the suit is in the best interests of the estate and
will not prejudice the interests of local creditors, or
(4) when otherwise authorized by the local law of the forum.
Restatement (Second) of Conflict of Laws § 354 (1971).27 Here, Shea has seasonably
objected to Mr. Coon’s maintenance of the action in Vermont. The claims are not one of
those enumerated in subsection (2). Moreover, the Court has discovered no provision of
Vermont law that authorizes a foreign executor to maintain an action to enforce a claim
in Vermont. However, as to subsection (3), maintenance of the suit in Vermont would
not seem likely to prejudice the interests of any Vermont creditors. Here, it does not
appear that Ms. Hunt’s estate has any assets in Vermont that might provide a basis for a
27
The rule in Vermont was different at the time that this Court decided the wrongful-death cases
in Dutil v. Mayette, 395 F. Supp. 922 (D. Vt. 1975) and Weinstein v. Medical Center Hospital of Vermont,
Inc., 358 F. Supp. 297 (D. Vt. 1972). See Restatement (First) of Conflict of Laws § 396 (1934) (“If the
death statute of the state of wrong provides that suit for the death shall be brought by the personal
representative of the deceased, recovery can be had only by a person qualified to sue at the forum as
personal representative of the deceased.”). The conversion and mischarge claims are not wrongful-death
claims, and in any case, Vermont has since adopted the approach in the Restatement (Second) of Conflict
of Laws. Martineau, 170 Vt. at 417, 751 A.2d at 778.
38
local administration, and it is not clear that there is any other forum in which the claims
could be enforced. See Restatement (Second) of Conflict of Laws § 354 cmt. e (“[A]
foreign executor or administrator will be permitted to sue upon a claim of the decedent in
a state in which there are insufficient assets to provide the basis for a local administration
under the local law of that state at least in a situation where there is no other forum in
which the claim could be enforced.”). The Court therefore concludes that Mr. Coon’s
claims for conversion and mischarge should not be dismissed for failure to obtain
ancillary letters of administration.
Finally, it might be that the sum of the potential damages on the conversion and
mischarge claims does not exceed 28 U.S.C. § 1332’s minimum. However, since the
Court is declining to dismiss the grave-desecration claim, the Court concludes that it has
supplemental jurisdiction over the conversion and mischarge claims pursuant to 28
U.S.C. § 1367(a) because they derive from a “common nucleus of operative fact” along
with Mr. Coon’s grave-desecration claim. Shahriar v. Smith & Wollensky Rest. Grp.,
Inc., 659 F.3d 234, 245 (2d Cir. 2011). The claims arise out of Ms. Hunt’s death and
Shea’s subsequent involvement providing funeral services.
V.
Mr. Coon’s “Motion to Gain All Records of [Joan M. Hunt]”
In his “Motion to Gain All Records of [Joan M. Hunt],” Mr. Coon asserts that he
needs account records from banks and creditors of his mother’s estate in order to respond
to claims asserted by those creditors against the estate. (See Doc. 70 at 2–3.) The records
that Mr. Coon seeks are not relevant to any claim or defense in this action, nor would
39
they be likely to lead to the discovery of admissible evidence relevant to any issue in this
case. See Fed. R. Evid. 26(b)(1). The Motion is accordingly DENIED.
Conclusion
SVMC’s Motion to Strike (Doc. 62) is DENIED. Mr. Coon’s “Motion to Gain All
Records of [Joan M. Hunt]” (Doc. 70) is DENIED.
SVMC’s original (Doc. 7) and renewed (Doc. 29) Motion to Dismiss and
alternative Motion for Summary Judgment is GRANTED; Attorney McClintock’s
Motion to Dismiss or for Summary Judgment (Doc. 49) is also GRANTED. The
wrongful-death claim against SVMC is DISMISSED without prejudice for lack of
capacity and because, on the present facts, it is time-barred. Mr. Coon’s remaining
claims against SVMC and Attorney McClintock are DISMISSED.
Shea’s original (Doc. 9) and renewed (Doc. 37) Motion to Dismiss and alternative
Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Mr.
Coon’s wrongful-cremation claim is DISMISSED. The portion of Shea’s Motions
seeking dismissal of the claims for conversion and mischarge and the claim for
desecration of graves is DENIED.
Dated at Burlington, in the District of Vermont, this 30th day of January, 2014.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
40
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