Parker Hayden v. Brian P. McKeon. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-447
PARKER HAYDEN
vs.
BRIAN P. MCKEON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Parker Hayden, appeals from a judgment of
the Superior Court dismissing his complaint for intentional
misrepresentation, fraudulent concealment, and breach of
fiduciary duty against the defendant, Dr. Brian P. McKeon. 1 The
plaintiff also appeals the denial of his motion for
reconsideration. Agreeing with the Superior Court judge that
the plaintiff's claims are barred by the doctrine of res
judicata, we affirm.
"The term 'res judicata' includes both claim preclusion and
issue preclusion." Santos v. U.S. Bank Nat'l Ass'n, 89 Mass.
App. Ct. 687, 692 (2016), quoting Kobrin v. Board of
1 The count alleging breach of fiduciary duty simply reiterated
the allegations set forth under the intentional
misrepresentation and fraudulent concealment counts.
Registration in Med., 444 Mass. 837, 843 (2005). "[C]laim
preclusion makes a valid, final judgment conclusive on the
parties and their privies, and bars further litigation of all
matters that were or should have been adjudicated in the
action." Duross v. Scudder Bay Capital, LLC, 96 Mass. App. Ct.
833, 836 (2020), quoting Heacock v. Heacock, 402 Mass. 21, 23
(1988). Claim preclusion "requires three elements: (1) the
identity or privity of the parties to the present and prior
actions, (2) identity of the cause of action, and (3) prior
final judgment on the merits." LaRace v. Wells Fargo Bank,
N.A., 99 Mass. App. Ct. 316, 324 (2021), quoting Santos, supra.
"Causes of action are the same for the purposes of res judicata
when they 'grow[ ] out of the same transaction, act, or
agreement, and seek[ ] redress for the same wrong.'" LaRace,
supra at 325, quoting Fassas v. First Bank & Trust Co. of
Chelmsford, 353 Mass. 628, 629 (1968). "We review the allowance
of a motion to dismiss de novo, accepting as true all well-
pleaded facts alleged in the complaint." Osborne-Trussell v.
Children's Hosp. Corp., 488 Mass. 248, 253 (2021), quoting Ryan
v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 614 (2019).
Here, the plaintiff's claims are barred by the doctrine of
res judicata because they arise from a "common nucleus of
2
operative facts." 2 Laramie v. Philip Morris USA Inc., 488 Mass.
399, 411 (2021), quoting Restatement (Second) of Judgments § 24
comment b (1982). See Howard v. Boston Water & Sewer Comm'n, 96
Mass. App. Ct. 119, 124 (2019) (claims precluded where "the
complaint in the Boston Municipal Court [was] based on the same
series of transactions as the complaint dismissed in the Housing
Court"). In October 2019, the plaintiff commenced the first of
two lawsuits against the defendant, his orthopedic surgeon. In
the first complaint, the plaintiff alleged that on June 19,
2012, during an elective surgical procedure on his right knee,
the defendant also "performed an unauthorized surgical procedure
known as a 'Lateral Release.'" The plaintiff alleged negligence
based on the defendant's concealment and failure to explain the
lateral release "after identification of patellar tilt and right
before the 'Tibial Tubercle Osteotomy.[']" In addition, the
plaintiff alleged negligent infliction of emotional distress
based on the defendant's refusal to speak with the plaintiff and
the defendant's failure to offer a "protocol for potential
reversal."
After a Superior Court judge allowed the defendant's motion
to dismiss, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass.
2 There is no dispute that the first and third elements of res
judicata are satisfied. See Kobrin, 444 Mass. at 844 ("there is
no question that there was a final order of the board on the
merits . . . and the parties in both actions are identical").
3
754 (1974), on the ground that the claims were barred by the
statute of repose, G. L. c. 260, § 4, the plaintiff filed a
second complaint. 3 In his second complaint the plaintiff alleged
that the defendant "intentionally omitted the lateral release
procedure" in his operative notes, "fraudulently concealed the
medical malpractice cause of action including the 'lateral
release' surgery," and failed to inform the plaintiff that he
had performed the lateral release surgery. 4
Both complaints arose out of the surgical procedure and its
aftermath, and both complaints sought redress for the
defendant's alleged concealment and failure to inform the
plaintiff of the nature of the procedure. The first complaint
raised "[t]he concealment and lack of explanation to the
plaintiff" of the surgical procedure and complication and the
defendant's refusal to provide the plaintiff with information
after the procedure. The second complaint similarly raised the
defendant's "not disclosing to or informing the plaintiff" of
3 The plaintiff appealed from the judgment dismissing his first
complaint. On April 26, 2021, a panel of this court affirmed.
Hayden v. McKeon, 99 Mass. App. Ct. 1121 (2021).
4 Given that the plaintiff allegedly became aware of the
defendant's misrepresentation and fraudulent concealment of the
lateral release surgery "[a]fter reviewing the medical records
in July 2019," there is no reason why the plaintiff could not
have pursued these claims when he filed his first complaint in
October 2019. Cf. Kobrin, 444 Mass. at 844 (disciplinary action
not barred by claim preclusion where "the board could not
previously have litigated this issue or disciplined the
petitioner as the convictions had not yet occurred").
4
the procedure. That the plaintiff packaged this concealment as
negligence and negligent infliction of emotional distress in the
first complaint and as fraud and breach of fiduciary duty in the
second complaint does not take this case outside the reach of
res judicata, as a claim brought under a different legal theory
"is not a different cause of action, provided it grows out of
the same transaction, act, or agreement, and seeks redress for
the same wrong." Laramie, 488 Mass. at 411, quoting Mackintosh
v. Chambers, 285 Mass. 594, 596 (1934).
The plaintiff's reliance on Chace v. Curran, 71 Mass. App.
Ct. 258 (2008), is misplaced. We held there that claims for
fraudulent concealment and intentional misrepresentation were
"not a recasting of their original claims for medical
malpractice," and thus not subject to the medical malpractice
statute of repose. Id. at 264. Putting aside the fact that our
opinion in Chace did not discuss res judicata or the standard
for identity of causes of actions for claim preclusion purposes, 5
5 In Chace, 71 Mass. App. Ct. at 259, the original complaint
against Dr. Arlene Curran and the nurse included counts for
fraudulent concealment and intentional misrepresentation, and
thus the dismissal of the malpractice count did not bar the
continuation of those counts. Although it is questionable
whether the plaintiff's claim in his first complaint for
negligent infliction of emotional distress should have been
dismissed under the statute of repose, the plaintiff raised no
issue regarding that count in his previous appeal. Once final
judgment entered on that count, claim preclusion prohibited its
resurrection under a new legal theory.
5
nothing in Chace suggests that claims for concealment, which the
plaintiff raised in the first complaint, are different than
claims for fraudulent concealment and intentional
misrepresentation based on the same concealment. Accordingly,
the plaintiff's claims are barred by res judicata.
Judgment of dismissal, and
order denying motion for
reconsideration, affirmed.
By the Court (Green, C.J.
Ditkoff & Hodgens, JJ. 6),
Clerk
Entered: August 28, 2023.
6 The panelists are listed in order of seniority.
6