446 Mass. 1 | Mass. | 2006
The plaintiff, Dr. Francisco S. Pardo, a radiation oncologist, appeals from a jury verdict in favor of the defendants, The General Hospital Corporation and Partners Healthcare System, Inc. (collectively the hospital), his former employer, on claims that he was discriminated against on the basis of his sexual orientation and that the hospital retaliated against him when he complained about the discrimination. See G. L. c. 151B, § 4 (1), (4), and (4A). At issue is whether the
1. Background. We summarize the facts as the jury could have found them, see Mitchell v. Silverstein, 320 Mass. 524, 525 (1946), identifying conflicting evidence where relevant.
Briefly stated, the plaintiff alleged that his career was derailed after he revealed his homosexuality to Dr. Herman D. Suit, at all relevant times chief of the hospital’s department of radiation oncology (department). The hospital countered with evidence that Dr. Suit had supported the advancement of the plaintiff’s career after the disclosure, as well as evidence that the department in general and Dr. Suit in particular had a history of recruiting, employing, and supporting homosexual employees.
In 1986 the plaintiff joined the department, beginning a three-year residency. Dividing his time between clinical and laboratory work, the plaintiff successfully completed his residency in 1989, receiving an award for excellence. Dr. Suit invited the plaintiff to remain on staff as a fellow for one year, during which time the plaintiff, with the support of Dr. Suit, received several competitive grants for research. In 1990, Dr. Suit recommended that the plaintiff join the medical staff of the department and be appointed an instructor at Harvard Medical School. Within two years the plaintiff had published several articles in academic publications. Dr. Suit agreed to increase the amount of clinical work undertaken by the plaintiff.
During his residency and fellowship years, the plaintiff did not disclose his sexual orientation to Dr. Suit or to other senior members of the hospital staff. In the spring of 1993, the plaintiff learned that his longtime partner was ill with acquired immune deficiency syndrome (AIDS). In October, 1993, the plaintiff informed Dr. Suit that he is “gay,” that his partner had AIDS, and that he might need to take some time off to care for his partner.
After this discussion, the plaintiff continued to advance in his career and Dr. Suit continued to support him. In the summer of 1994, Dr. Suit recommended the plaintiff for promotions at the hospital and at Harvard Medical School. Dr. Suit also recommended the plaintiff for further grant funding for his research.
Sometime thereafter difficulties arose between Dr. Suit and the plaintiff. The jury learned that, in January, 1995, Dr. Suit reprimanded the plaintiff for removing certain laboratory research data books from Dr. Suit’s laboratory
In April, 1995, Dr. Alan Hartford, a medical resident in the department, submitted a five-page memorandum to Dr. Suit (Hartford memorandum), in which he detailed numerous incidents over the course of the preceding three months to the effect that the plaintiff had not provided adequate supervision and training of residents.
In late May, 1995, Dr. Suit informed the plaintiff that he was removing him from teaching and supervising residents, and would cease assigning residents to the plaintiff effective July 1, 1995.
On August 17, 1995, the plaintiff filed a complaint with the
Dr. Suit testified that in light of his escalating concerns, in December, 1995, he recommended that the plaintiff’s reappointment to the medical staff be limited to six months, and that his clinical work be supervised. The hospital’s general executive committee (GEC) considered Dr. Suit’s recommendation in January, 1996,
In February, 1998, after a hearing, the staff review committee recommended that the board reverse its decision with respect to the plaintiff’s clinical privileges. The staff review committee upheld the board’s decision denying the plaintiff’s application for reappointment in July, 1996. The board restored the plaintiffs clinical privileges nunc pro tune for the period January to June, 1996. The plaintiff filed suit against the hospital and others
2. The medical peer review privilege. The plaintiff challenges the judge’s pretrial order denying his request for the discovery of certain documents the hospital claimed were privileged under the medical peer review statute, G. L. c. Ill, § 204 (a), because, he asserts, his allegations of “bad faith” on the part of Dr. Suit, Dr. Slavin, and the clinical director triggered the statutory exception to the privilege. The exception permits discovery of medical peer review materials where a committee member did not act “in good faith” and “in the reasonable belief” that his actions were warranted. See G. L. c. 111, § 204 (b).
The judge was correct to rule as she did. The Legislature has mandated that the medical profession regulate the quality of patient care by identifying and remedying instances of substandard care at least in part through internal medical peer review proceedings. See, e.g., G. L. c. 111, § 203 (a), (d).
The Legislature provided a single, narrow exception to the privilege “to establish” that a member of a peer review committee did not act “in good faith and in the reasonable belief that based on all of the facts the action or inaction on his part was warranted” during the peer review process. See G. L. c. 111, § 204 (b); G. L. c. 231, § 85N.
Here, Dr. Suit’s concerns about the plaintiff’s performance were initially triggered in substantial part by the complaint received from Dr. Hartford. His concerns were heightened when he received Dr. Thornton’s comprehensive letter outlining numerous performance shortcomings of the plaintiff. There is no allegation by the plaintiff that either Dr. Hartford or Dr. Thornton harbored any animus toward him.
We emphasize that, in the face of the hospital’s opposition to the plaintiff’s broad discovery requests, the judge ordered the hospital to produce substantial discovery. The plaintiff reviewed, among other items, the written materials that triggered Dr. Suit’s concerns; the promotional files for other doctors considered for academic positions at Harvard Medical School; all residency teaching evaluations of medical staff members from 1990 to 1996; and the transcripts and other records of the staff review committee. The plaintiff deposed all of the key decisionmakers. The only information not ordered disclosed was the privileged materials of the peer review committees. We also note that the thrust of the plaintiff’s challenge was to obtain not the materials of the GEC when it acted on Dr. Suit’s complaint concerning the plaintiff himself, but the records of numerous other peer review proceedings that had nothing to do with the plaintiff. See notes 19 and 20, supra. That the plaintiff did not seek an interlocutory appeal from the small segment of documents not ordered produced speaks volumes of the lack of importance he attached to those documents before trial.
The Legislature has made clear that, in this Commonwealth, discrimination on the basis of sexual orientation is against public policy and shall not be tolerated. See G. L. c. 151B, § 4. It has established and funded a special commission to investigate and
The plaintiff relies on discrimination cases in which Federal courts have declined to recognize a Federal common-law medical peer review privilege. See, e.g., Virmani v. Novant Health, Inc., 259 F.3d 284, 289 (4th Cir. 2001) (refusing to recognize privilege under Federal common law for medical peer review records in Federal discrimination actions, because “interest in
We have recognized that “the peer review privilege imposes some hardship on litigants seeking to discover information from hospital records, but the Legislature has clearly chosen to impose that burden on individual litigants in order to improve
3. Hearsay evidence. The plaintiff claims that it was error for the judge to admit in evidence the Hartford memorandum, see note 9, supra, and the Thornton letter and to permit testimony concerning their contents. At trial he objected to the admission of the two documents and to Dr. Suit’s testimony about the Hartford memorandum only.
We first describe the circumstances in which the challenged evidence was admitted. The hospital sought to admit the Hartford memorandum during Dr. Suit’s testimony. The plaintiff objected, and the judge held a sidebar conference and ruled that the document was “coming in to show, if believed, why Dr. Suit took the action that he took.” The document was admitted, and the judge gave the jury an appropriate limiting instruction. Dr. Suit then testified that he had received the document and spoken with Dr. Hartford, and explained to the jury why he thought each concern mentioned in the document was important. The following day Dr. Suit continued testifying about the substance of the Hartford memorandum, the plaintiff again objected, and the judge gave a second detailed and entirely correct limiting instruction to the jury. Later Dr. Hartford testified about his reasons for writing the memorandum, and testified, without objection, about the “essential problem” he had with the plaintiff and about the substance of some of the specific concerns contained in his memorandum.
During Dr. Suit’s testimony, defense counsel also moved to admit the Thornton letter. The plaintiff objected on the ground of hearsay. The judge went through the letter paragraph by paragraph and ordered redaction of some of its contents. The redacted letter was admitted, and both Dr. Suit and Dr. Thornton were permitted to testify about its substance. The plaintiff did not object to Dr. Suit’s testimony, nor did he raise any objection
The admission of evidence is within the broad discretion of the judge. See Zucco v. Kane, 439 Mass. 503, 507 (2003). Here, the plaintiff maintains that testimony concerning the Hartford memorandum and the Thornton letter was admissible to prove only that the person to whom these materials were addressed, Dr. Suit, had notice or knowledge of their contents. Relying on Commonwealth v. Rosario, 430 Mass. 505, 509 (1999), the plaintiff argues that admission of the documents themselves, and the challenged testimony, should not have been permitted as this went “far beyond” the notice and knowledge under the exception, creating unfair prejudice to him.
Both the Hartford memorandum and the Thornton letter were themselves properly admitted to show notice and knowledge on the part of Dr. Suit. See RJ. Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 8.2.2, at 466 (7th ed. 1999) (“An extrajudicial statement is not hearsay when offered to prove that the person to whom it was addressed had notice or knowledge of the contents of the statement”). The documents and the related testimony also pertained directly to the hospital’s lawful, nondiscriminatory reasons for its employment decisions concerning the plaintiff. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117-118 (2000). Under the state of mind exception, both documents and the testimony concerning them were properly admitted to explain why Dr. Suit took the actions he did concerning the plaintiff. See P.J. Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence, supra at § 8.2.2, at 470-471 (“Where a statement is offered to prove the effect it had on the listener’s state of mind, that state of mind must be relevant to an issue properly in the case”). See
All of the challenged evidence was relevant to Dr. Suit’s state of mind insofar as it served as a basis for the adverse action he took against the plaintiff. The judge’s two limiting instructions, one given when requested, ensured that the jury would not find that the underlying criticism of Dr. Hartford and Dr. Thornton was necessarily true.
4. Jury instructions on the retaliation claim. The plaintiff argues that the judge should have instructed the jury on two points relating to his retaliation claim. First, he claims that the judge improperly refused to instruct the jury that the nearness in time between the protected activity
The jury are permitted to infer retaliation from the “timing and sequence of events.” Mole v. University of Mass., 442 Mass. 582, 592 (2004). Such an inference may be drawn “if adverse action is taken against a satisfactorily performing
It is the general rule that “[t]he extent to which a judge shall discuss the evidence or the subsidiary facts is generally within [her] discretion.” Barnes v. Berkshire St. Ry., 281 Mass. 47, 50-52 (1932). We recognize that in a retaliation case such as this, there is often no direct evidence of discrimination or retaliation, and a plaintiff’s proof will often depend on circumstantial evidence. Because direct evidence of retaliation is rare, a neamess-in-time instruction may fall within an exception to the general mie just stated: “Sometimes the issue depends upon the existence of some fact, theoretically subsidiary but practically decisive if found. In such a case, for a judge to ignore the simple concrete test and submit the case upon abstract general instructions blurs the point and may mislead the jury.” Id. at 52. Cf. Bouley v. Reisman, 38 Mass. App. Ct. 118, 122-123 (1995) (instruction on possible inference not required where several inferences possible). Thus, although falling within a judge’s discretion, in a discrimination or retaliation case based on circumstantial evidence, a neamess-in-time instruction should be given if the evidence supports it, and if requested. Id. Where there is conflicting evidence concerning the inference for which the instruction is requested, however, a judge retains her broad authority to decide whether to include the instmction. Id. at 123.
In this case there was sharply conflicting evidence regarding the sequence and timing of events. Specifically, there was conflicting evidence as to when the plaintiff first told Dr. Suit he was concerned about discrimination based on his sexual
The second claim of error concerns the judge’s response to a jury question about the second element of a retaliation claim: that the plaintiff acted reasonably in response to his belief that his employer was discriminating against him. A retaliation claim requires proof that (1) the plaintiff reasonably and in good faith believed that the employer was engaged in wrongful discrimination; (2) that he acted reasonably in response to that belief; and (3) that there is a causal connection between the protected conduct and an adverse employment action. Mole v. University of Mass., supra at 591-592. On the second day of deliberations, the jury requested that the judge “clearly” define for them “what actions would have been ‘reasonable’ in filing a
“[Wjhether the filing was reasonable is entirely up to you to decide from all of the evidence that you have in this case. A reasonable person is an ordinarily sensible, prudent person, one who is discerning in the management of practical affairs.”
The judge further instructed: “When I say ‘reasonable person,’ I mean a reasonable person in [the plaintiff’s] position in all of the circumstances that you’ve heard about in this case on the date in question.” On appeal, the plaintiff argues that where an individual reasonably and in good faith believes that discrimination has occurred, filing a charge of discrimination with the MCAD is per se reasonable and that the jury should have been so instructed.
The judge properly instructed the jurors that the question of reasonableness was a question of fact for them to decide. To instruct the jury as the plaintiff requested would remove the is
Judgment affirmed.
The judge in the Superior Court was assigned to handle all phases of the case, including all discovery matters and the trial.
General Laws c. 111, § 204 (a), provides in pertinent part:
“Except as otherwise provided in this section, the proceedings, reports and records of a medical peer review committee shall be confidential. . . [and] shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding, . . . and no person who was in attendance at a meeting of a medical peer review committee shall be permitted or required to testify in any such judicial or administrative proceeding . . . .”
“ ‘Medical peer review committee’ is defined in G. L. c. Ill, § 1, as ‘a committee of a state or local professional society of health care providers ... or of a medical staff of a public hospital or licensed hospital . . . which committee has as its function the evaluation or improvement of the quality of health care rendered by providers of health care services, the determination whether health care services were performed in compliance with the applicable standards of care . . . [or] the determination of whether a health care provider’s actions call into question such health care provider’s fitness to provide health care services ....’”
For example, a doctor once employed in the department testified that he
Dr. Suit described a letter he wrote in support of the plaintiff’s grant application as “a very positive, enthusiastic recommendation.”
The plaintiff testified that he was authorized to review the data books, that the laboratory books did not belong to any particular researcher, and that he removed the books from the laboratory only to review them in a quieter office space elsewhere. Dr. Suit testified that the books belonged to another researcher, and that it was against departmental policy to “violate another person’s research data book.”
The plaintiff testified that, shortly thereafter, he told Dr. Suit that he was concerned that he was not being “treated appropriately,” and that he was planning to pursue his rights “as a gay male in the workplace.” Dr. Suit denied that he was aware of the plaintiff’s concerns about discrimination based on his sexual orientation, but testified that he was aware that the plaintiff was considering retaining an attorney but did not know for what purpose.
Dr. Hartford first initiated a discussion with Dr. Suit about his concerns. Dr. Suit suggested that Dr. Hartford put his concerns in writing if he felt “strongly” about them.
Dr. Hartford wrote (and read to the jury at trial), “Pages were left unanswered. Responses to questions were vague and not informative. Often [the plaintiff] would refuse to respond to telephone calls from patients and refer them to me, even if I had never met the patient and knew nothing about the patient’s past history with [the plaintiff].”
Dr. John Munzenrider, who then served as director of residency training at the hospital, testified that Dr. Suit did not consult him regarding the decision to relieve the plaintiff of his teaching duties and that, in his view, the plaintiff was a good teacher of residents.
There is no evidence describing the composition or function of the executive committee of the department of radiation oncology (department). Presumably it is different from the general executive committee (GEC), which is a hospital-wide committee. See note 12, infra.
The GEC acts as an advisory body to the chief executive officer and the trustees of the hospital. According to the hospital bylaws, among other duties, the GEC “considers] and recommend[s] to the Trustees appointments and other actions relative to the Professional Staff.” The hospital bylaws designate the GEC as a “medical peer review committee.”
Although the hospital bylaws provide the GEC with the option of doing so, the GEC did not invite the plaintiff to appear before it to address the concerns raised by Dr. Suit.
The hospital bylaws provide that on receipt of an aggrieved staff member’s written request for a hearing, the chief executive officer submits the request to the GEC, which appoints a staff review committee. The staff review committee consists of five staff members, two of whom have the same rank as the aggrieved staff member and none of whom has been “actively involved in formulating the recommendation upon which the Trustees have acted.”
In May, 2002, by stipulation of dismissal, the plaintiff dismissed all claims against the remaining defendants, waiving all rights of appeal.
General Laws c. 111, § 204 (b), provides in pertinent part: “[T]he proceedings, reports, findings and records of a medical peer review committee [shall not] be immune from subpoena, discovery or use as evidence in any proceeding against a member of such committee to establish a cause of action pursuant to [G. L. c. 231, § 85N].”
General Laws c. 231, § 85N, in turn, provides: “No member of a professional society or of a duly appointed committee thereof, or a duly appointed member of a committee of a medical staff of a licensed hospital. . . shall be liable in a suit for damages as a result of his acts, omissions or proceedings undertaken or performed within the scope of his duties as such a committee member, provided that he acts in good faith and in the reasonable belief that based on all of the facts the action or inaction on his part was warranted
GeneraI Laws c. 111, § 203 (c), provides: “An individual or institution . . . providing information, opinion, counsel or services to a medical peer review committee . . . shall not be liable in a suit for damages by reason of having furnished such information, opinion, counsel or services or by reason
Specifically, the plaintiff requested “[a]ll documents relating to deficiencies in patient care concerning members of the [department], dating from 1986 to the present, including, but not limited to patient complaints, utilization review data and quality assessment committee reports and/or data, internal audits, internal incident reports, major incident reports to the Board of Registration in Medicine, as well as reports from internal review committees’ investigations, memoranda, reports from [hospital] committees and notes kept by members of the [department and/or [hospital] administrators, including but not limited to all complaints made by and notes regarding such complaints” taken by the three physicians.
Among other discovery orders, in July, 2000, the judge ordered the hospital to submit a “peer review privilege log” listing “all documents relating to comparative data relating to patient care deficiencies, denial and/or
The judge ordered the hospital to produce three documents referenced in the hospital’s medical peer review privilege log, as well as all residency teaching evaluations of medical staff members from 1990 to 1996. Although her ruling did not contain a detailed analysis of the medical peer review privilege’s application to each document listed in the log, it is clear that her decision not to order production of the remaining documents rested on G. L. c. 111, § 204 (a).
On appeal, the plaintiff’s argument focuses solely on whether the medical peer review privilege should have yielded to the statutory exception. He does not challenge the judge’s implicit ruling that the remaining 190 documents listed in the hospital’s peer review privilege log fell within the scope of the privilege. Any claim to that effect is therefore waived; we do not consider it.
General Laws c. 111, § 203 (a), provides: “The by-laws of every licensed or public hospital and the by-laws of all medical staffs shall contain provisions for reporting conduct by a health care provider that indicates incompetency in his specialty or conduct that might be inconsistent with or harmful to good patient care or safety.”
General Laws c. 111, § 203 (d), provides: “Every licensed hospital, as a condition of licensure, and every public hospital shall be required to participate in risk management programs established by the board of registration in medicine pursuant to [G. L. c. 112, § 5] . . . .”
The exemption of immunity from liability, and attendant medical peer review privilege extends to “any proceeding against a member of [a peer review] committee to establish a cause of action.” G. L. c. 111, § 204 (b). See also G. L. c. 111, § 203 (c). The individual defendant doctors who participated in the peer review committee (the GEC) were dismissed as defendants before trial. See note 15, supra. The discovery dispute, however, arose before they were dismissed.
“Good faith” has been defined in various contexts. See, e.g., Dynan v. Fritz, 400 Mass. 230, 243 (1987) (“good faith requires a full and honest disclosure of all relevant circumstances to permit a disinterested decision-maker to exercise its informed judgment,” in context of repurchase of company stock from officer-director); Commonwealth v. Sheppard, 387 Mass. 488, 511 (1982) (Liacos, J., concurring) (in context of good faith police search pursuant to defective warrant, “[a] proper legal definition of ‘good faith’ involves not only a lack of malevolence, but also a reasonable effort to comply.with the law”); G. L. c. 106, § 1-201 (19) (defining “good faith” as “honesty in fact in the conduct or transaction concerned,” in Massachusetts Commercial Code context). See also Black’s Law Dictionary 701 (7th ed. 1999) (“good faith” is “state of mind consisting in . . . honesty in belief or purpose . . . faithfulness to one’s duty or obligation, [or] absence of intent to defraud or to seek unconscionable advantage”).
The language of the statute provides that there is no immunity from discovery where a medical peer review committee member did not act “in good faith and in the reasonable belief” that his actions were warranted. See note 16, supra. We therefore focus on the term “good faith” rather than “bad faith,” as the plaintiff has done. Cf. Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 394 (2005) (“the medical peer review privilege does not extend to physicians who participate [in the peer review] in bad faith,” discussing G. L. c. 111, § 203 [c]). In other contexts we have said that the term “bad faith” “imports a dishonest purpose [and] implies conscious doing of wrong. It means a breach of a known duty through some motive of interest or ill will . . . [or] ‘with actual intent to .mislead or deceive another.’ ” Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 416 (1937), quoting Penn Mut. Life Ins. Co. v. Mechanics’ Sav. Bank & Trust Co., 73 F. 653, 654 (6th Cir. 1896).
The plaintiff describes Dr. Hartford as a “disgruntled” medical resident.
In support of his pretrial motion to compel discovery of the medical peer review materials, the plaintiff pointed to the following as evidence of “bad faith”: (1) there were conflicting accounts in depositions by Dr. Suit, the clinical director, and a hospital employee regarding whether the clinical director had made homophobic comments; (2) Dr. Suit did not report concerns about the plaintiff’s performance to a peer review committee before recommending to the GEC that the plaintiff’s privileges he limited, which, according to the plaintiff, did “not appear to be standard practice”; and (3) Dr. Slavin’s deposition testimony that a particular physician was present at the GEC meeting and that that physician corroborated Dr. Suit’s assessment of the plaintiff was inconsistent with the physician’s testimony at the staff review committee hearing. The first two examples do not pertain to activities of the peer review committee and are therefore irrelevant. As to the third, even if Dr. Slavin’s deposition testimony did not accurately reflect what in fact occurred
On appeal, the plaintiff asserts that he elicited testimony at trial to the effect that a staff review committee rarely recommends that the board revise a prior decision with respect to medical staff privileges, as it did here. He argues that the discipline imposed on him therefore was inconsistent with the hospital’s standards and that, in such circumstances, he made a sufficient showing of “bad faith” to require discovery. We do not agree. First, this testimony was elicited at trial, and not brought to the judge’s attention at the discovery stage, as it could have been: the plaintiff was free to depose the same witnesses and ask them the same questions during discovery. In any event, the reversal of a prior board decision does not necessarily mean that medical peer review committee members did not act in good faith and in the reasonable belief that their actions were warranted.
The purpose served by the medical peer review privilege is similar in some respects to the attorney-client privilege, which is “founded on the necessity that a client be free to reveal information to an attorney without fear of its disclosure, in order to obtain informed legal advice.” Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 111 (1997). Although the attorney-client privilege “creates an inherent tension with society’s need for full and complete disclosure of all relevant evidence,” Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 482 (1990), quoting In re Grand Jury Investigation, 723 F. 2d 447, 451 (6th Cir. 1983), cert. denied, 467 U.S. 1246 (1984), “that is the price that society must pay for the availability of justice to every citizen.” Matter of a John Doe Grand Jury Investigation, supra.
The plaintiff also points to several Federal courts that have determined that even where the privilege has been established by State statute, a Federal court sitting in that jurisdiction must determine as a matter of Federal law whether there is a Federal medical peer review privilege. See, e.g., Marshall v. Spectrum Med. Group, 198 F.R.D. 1, 4-5 (D. Me. 2000) (declining as matter of Federal common law in physician’s action under Federal antidiscrimination law to recognize Federal peer review privilege despite existence of State privilege); Johnson v. Nyack Hosp., 169 F.R.D. 550, 561 (S.D.N.Y. 1996) (holding that State medical peer review statute not applicable in Federal civil rights action and recognizing that Federal law does not recognize medical peer review privilege); Robertson v. Neuromedical Ctr., 169 F.R.D. 80, 83-84 (M.D. La. 1996) (same); LeMasters v. Christ Hosp., 791 F. Supp. 188, 191 (S.D. Ohio 1991) (same). However, several other Federal courts have applied State medical peer review privilege law in discrimination or civil rights cases. See, e.g., Komlosi vs. New York State Office of Mental Retardation & Dev. Disabilities, U.S. Dist. Ct. No. 88 Civ. 1792 (JFK) (S.D.N.Y 1992) (applying New York peer review privilege law in Federal civil rights action); Doe v. St. Joseph’s Hosp. of Fort Wayne, 42 Empl. Prac. Dec. (CCH) par. 36,973 (N.D. Ind. 1987) (applying Indiana State peer review privilege in discrimination case). See also Brem v. DeCarlo, Lyon, Hearn & Pazourek, P.A. 162 F.R.D. 94 (D. Md. 1995) (applying Maryland medical peer review privilege in Federal defamation action); Mewborn v. Heckler, 101 F.R.D. 691 (D.D.C. 1984) (applying District of Columbia peer review privilege in Federal Tort Claims Act action).
The plaintiff did not object on hearsay grounds to Dr. Hartford’s testimony about his own memorandum, Dr. Suit’s testimony about the Thornton letter, or Dr. Thornton’s testimony about his letter to Dr. Suit.
The plaintiff did object generally to Dr. Thornton’s testimony before the letter was admitted. In response, the judge correctly told the plaintiff’s attorney to register his specific objections when Dr. Thornton testified. During Dr. Thornton’s testimony, the plaintiff did not raise any hearsay objection.
In Commonwealth v. Rosario, 430 Mass. 505, 508 n.3 (1999), we noted that “a greater level of scrutiny of hearsay statements” is required in “the case of criminal trials.” This appeal involves a civil trial, so this exacting scrutiny is not required.
If requested, the judge presumably would have given the jury a limiting instruction with respect to the admission of the Thornton letter and testimony concerning the content of that letter. Where the plaintiff failed to request a limiting instruction concerning this evidence, and failed to object to Dr. Suit’s testimony concerning the content of the letter, the judge did not abuse her discretion in admitting the evidence.
Under G. L. c. 151B, § 4 (4), a plaintiff has engaged in a protected activity if “he has opposed any practices forbidden under this chapter or . . . has filed a complaint, testified or assisted in any proceeding under [G. L. c. 151B, § 5],” which provides for filing of complaints of discrimination with the Massachusetts Commission Against Discrimination (MCAD). It is unlawful under G. L. c. 151B, § 4 (4A), “[f]or any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter . . . .”
At trial, the plaintiff testified that in the summer of 1993, he spoke with Dr. Clyde Evans, director of the office for academic careers and associate dean for clinical affairs at the Harvard Medical School, regarding his concerns about his work environment. Dr. Evans testified that he could not recall the substance of that conversation. The plaintiff also testified that he spoke with Dr. Suit in the summer of 1993 about the clinical director’s “poor attitude” and his “poor approach to gay patients.” Dr. Suit did not testify concerning this conversation.
In his closing argument, the plaintiff did not emphasize the nearness in time of the protected activity and the adverse action, suggesting that the issue was not as significant as the plaintiff now claims.
The plaintiff also argues that if a “reasonableness” standard is applied — i.e., the test used to determine whether “oppositional activity” is protected — the standard should not be objective reasonableness, as the judge instructed, but rather a “not unreasonable” standard. The plaintiff did not object to the instruction on this basis. He requested that the standard be “a reasonable person in [the plaintiff’s] shoes.” The judge gave the requested instruction. To the extent the issue of an objective standard of reasonableness has any validity, it is waived.
The plaintiff also argues that upholding the jury instruction on retaliation will result in juries finding no retaliation whenever they find that the underlying discrimination claim has not been proved. The point has no merit. The judge specifically and correctly instructed the jurors:
“In proving a claim for retaliation, [the plaintiff] does not have to succeed on his underlying complaint of discrimination. Even if you find that [the plaintiff] does not prove that the hospital acted, actually discriminated against him because he [is] gay, you may still find that he has proven that the hospital retaliated against him for filing an internal complaint of discrimination against him or in initiating a legal proceeding at the [MCAD].”
As long as the jury are “[p]roperly instructed and acting under those instructions, the jury’s verdict on discrimination [cannot affect] their verdict on retaliation.” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 122 (2000).
The plaintiff argues that the question whether filing a charge of discrimination was a “preemptive strike” (in the judge’s term) or a “smokescreen,” Monteiro v. Poole Silver Co., 615 F. 2d 4, 8 (1st Cir. 1980), is encompassed by the first element of a retaliation claim. We do not agree. The first prong of a retaliation claim requires that the finder of fact consider only the plaintiffs belief. The second prong of a retaliation claim directs the finder of fact to consider the plaintiff’s actions: whether the plaintiff “acted reasonably in response to [his] belief.” Abramian v. President & Fellows of Harvard College, supra at 121, quoting Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). Although the filing of a charge of discrimination is a “protected” activity under G. L. c. 151B, § 4 (4), it may not be “reasonable” for purposes of proving retaliation.