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Mega Edition: Sandra Birchmore And The Search For Justice (10/13/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the program. As
• 0:04
  Speaker 1: I've been looking at the Karen Reid trial, another case
• 0:08
  Speaker 1: has been brought to my attention, and that's the situation
• 0:11
  Speaker 1: involving Sandra Birchmore. And her story is absolutely heartbreaking. Now,
• 0:18
  Speaker 1: Sandra allegedly died from suicide, but that has all been
• 0:23
  Speaker 1: thrown into question as of late as more investigation has
• 0:27
  Speaker 1: been done and a deeper dive has been performed by
• 0:31
  Speaker 1: the authorities. And it's starting to look like Sandra didn't
• 0:35
  Speaker 1: commit suicide at all. And instead, well, it looks like
• 0:40
  Speaker 1: Sandra was murdered. So before we dive into any articles
• 0:43
  Speaker 1: or anything like that, what we're going to do is
• 0:47
  Speaker 1: take a look at the amended decision and order regarding
• 0:51
  Speaker 1: defendant's motions to dismiss. And this will kind of give
• 0:54
  Speaker 1: us an idea of what we're going to be talking
• 0:57
  Speaker 1: about moving forward when it comes to Sandra Birchmore. So
• 1:01
  Speaker 1: let's get to it. Darlene Smith versus Matthew Farwell at all.
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  Speaker 1: Case number? 22-82-CV-01-197, amended decision and order regarding defendant's motions
• 1:15
  Speaker 1: to dismiss. In February 2021, 23-year-old Sandra Birchmore, Ms. Birchmore,
• 1:22
  Speaker 1: tragically took her own life, allegedly, in Canton, Massachusetts. On
• 1:27
  Speaker 1: December 29, 2022, Ms. Birchmore's aunt, Darlene Smith, plaintiff or Ms. Smith,
• 1:33
  Speaker 1: filed this civil action as the personal representative for Ms.
• 1:37
  Speaker 1: Birchmore's estate. The named defendants are Matthew Farwell, M. Farwell,
• 1:42
  Speaker 1: William Farwell, W. Farwell, Robert Devine, Joshua Heal, the Town
• 1:47
  Speaker 1: of Staunton, and the Town of Staunton Police Department, collectively
• 1:51
  Speaker 1: the defendants. At all relevant times, defendants M. Farwell, W. Farwell,
• 1:56
  Speaker 1: and Devine were police officers employed by the Stoughton PD,
• 2:00
  Speaker 1: and defendant Hill was the town's animal control officer. In
• 2:04
  Speaker 1: her second amended complaint and demand for jury trial amended
• 2:08
  Speaker 1: complaint docket entry number 5.0, plaintiff alleges that Ms. Birchmore
• 2:12
  Speaker 1: was a troubled youth who deeply respected authority figures, most
• 2:16
  Speaker 1: notably police officers, and that each of the individual defendants
• 2:21
  Speaker 1: took advantage of Ms. Birchmore by engaging in sexual relations
• 2:24
  Speaker 1: with her, beginning in some instances when she was under
• 2:27
  Speaker 1: 16 years of age. In particular, plaintiff asserts that defendants M. Farwell, W. Farwell,
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  Speaker 1: and Devine cooperatively groom Ms. Birchmore from an early age
• 2:38
  Speaker 1: for their joint sexual exploitation. Defendant Heal is alleged to
• 2:43
  Speaker 1: also have had sex with Ms. Birchmore while she was
• 2:45
  Speaker 1: an adult, knowing that she was involved in ongoing sexual
• 2:49
  Speaker 1: relationships with Defendant M. Farwell, W. Farwell, and Devine. The
• 2:54
  Speaker 1: town is a defendant because it hired and employed the
• 2:58
  Speaker 1: individual defendants, some of whom allegedly engaged in sexual conduct
• 3:02
  Speaker 1: with Ms. Birchmore while on duty. Plaintiff's amended complaint officially
• 3:08
  Speaker 1: contains a total of 10 counts. Her specific allegations and
• 3:11
  Speaker 1: claims against the defendants are that 1. Defendant M. Farwell, W. Farwell, Devine,
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  Speaker 1: and Heal are liable on account of their continuous pattern
• 3:21
  Speaker 1: of grooming and abusive behavior over many years. For Ms.
• 3:25
  Speaker 1: Birchmore's wrongful death, count 1, and for negligently failing to
• 3:29
  Speaker 1: protect Ms. Birchmore, from sexual exploitation when she was a minor,
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  Speaker 1: count two. Two, defendant Devine is separately liable for negligently
• 3:38
  Speaker 1: failing to protect Ms. Birchmore as the head of the
• 3:40
  Speaker 1: Stoughton PD's Explorer Program for Children, in which Ms. Birchmore
• 3:44
  Speaker 1: participated as a teenager, count three. Defendant Town is liable
• 3:49
  Speaker 1: for negligently hiring defendants M. Farwell and W. Farwell as
• 3:53
  Speaker 1: police officers, count four. And for negligently supervising defendants M. Farwell, W. Farwell,
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  Speaker 1: and Divine Estout and PD employees. Count five. Defendants M. Farwell, W. Farwell, Divine,
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  Speaker 1: and Hill are liable for committing assault and battery on Ms.
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  Speaker 1: Birchmore on multiple occasions. Count six. All defendants are liable
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  Speaker 1: for negligently inflicting significant emotional distress on Ms. Birchmore's family.
• 4:21
  Speaker 1: Count seven. All defendants are liable for negligently inflicting significant
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  Speaker 1: emotional distress on Ms. Birchmore during her lifetime. Count eight.
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  Speaker 1: All defendants are liable for violating Ms. Birchmore's civil rights
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  Speaker 1: under color of law in violation of U.S. Code 42,
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  Speaker 1: Section 1983, Count 9. And defendants M. Farwell, W. Farwell, Devine,
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  Speaker 1: and Heal are liable for jointly conspiring to coerce and
• 4:49
  Speaker 1: manipulate Ms. Birchmore into engaging into illicit sexual activities, oftentimes
• 4:54
  Speaker 1: during the scope of their employment or while on duty.
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  Speaker 1: Plaintiff filed her present complaint on or about February 2, 2023.
• 5:03
  Speaker 1: Defendants W. Farwell, Devine, Heal, and the town responded by
• 5:08
  Speaker 1: filing separate motions to dismiss all of plaintiff's claims against
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  Speaker 1: them under Mass. R. Civ. P. 12b1 and or 12b6.
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  Speaker 1: Defendant Heal also filed a motion to sever claims and
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  Speaker 1: a motion for separate trial. No motion to dismiss has
• 5:24
  Speaker 1: been filed by defendant M. Farwell. The court conducted an
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  Speaker 1: in-person hearing on the parties' motions on November 1, 2023.
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  Speaker 1: All of the parties, through their respective attorneys, appeared. Upon
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  Speaker 1: consideration of the written submissions received and the oral arguments
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  Speaker 1: of counsel, the court rules as follows for the reasons
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  Speaker 1: explained below. 1. Defendant's heels motion to dismiss plaintiff's claims
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  Speaker 1: against him is allowed, as to all counts. The court
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  Speaker 1: takes no action on defendant heels' other motions at this time.
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  Speaker 1: as they are effectively mooted by the court's decision to
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  Speaker 1: allow his motion to dismiss. 2. Defendant Devine's motion to
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  Speaker 1: dismiss plaintiff's claims against him is allowed as to count 7.
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  Speaker 1: Negligent Infliction of Emotional Distress and denied as to all
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  Speaker 1: other counts. 3. Defendant W. Farwell's motion to dismiss plaintiff's
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  Speaker 1: claims against him is allowed as to count seven negligent
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  Speaker 1: infliction of emotional distress and denied as to all other counts.
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  Speaker 1: His motion to dismiss defendant Hill's cross claims also is allowed. Four.
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  Speaker 1: Defendant Towns' motion to dismiss plaintiff's claims against it is
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  Speaker 1: allowed as to count seven, negligent hiring, and denied as
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  Speaker 1: to all other counts. And five, for reasons of efficiency
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  Speaker 1: and consistency, the court also will dismiss sui sponte count seven,
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  Speaker 1: negligent infliction of emotional distress of plaintiff's amended complaint against
• 6:50
  Speaker 1: defendant M. Farwell. Factual Background As previously noted, this case
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  Speaker 1: arises primarily— from the alleged multi-year sexual grooming and exploitation
• 7:01
  Speaker 1: of Ms. Birchmore from an early age by three former
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  Speaker 1: members of the Stoughton PD, which plaintiff claims precipitated Ms.
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  Speaker 1: Birchmore's suicide in February of 2021. Ms. Birchmore, who was
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  Speaker 1: born in May 1997, grew up in the town of Stoughton.
• 7:18
  Speaker 1: During her childhood, she suffered the loss of her mother
• 7:20
  Speaker 1: and her grandmother. She also suffered significant mental and emotional
• 7:24
  Speaker 1: problems for which she received psychological treatment. By all accounts, Ms.
• 7:29
  Speaker 1: Birchmore deeply admired authority figures, particularly police officers. In 2011,
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  Speaker 1: she joined the Stoughton PD's Explorers Program, the Explorers Program,
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  Speaker 1: or the Program, which was run like a junior police
• 7:42
  Speaker 1: academy for young persons between the ages of 13 and 18. Ms.
• 7:46
  Speaker 1: Birchmore was just 14 years old when she joined the program.
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  Speaker 1: Defendant Devine served as the head of the Explorers program
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  Speaker 1: beginning in 2003, and it was in that capacity that
• 7:57
  Speaker 1: he got to know Ms. Birchmore and became aware of
• 8:00
  Speaker 1: her difficult home life and circumstances. Defendants M. Farwell and W.
• 8:05
  Speaker 1: Farwell were Stoughton PD officers who served as instructors in
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  Speaker 1: the Explorers program. They too became familiar with Ms. Birchmore
• 8:14
  Speaker 1: through the program. It is central to plaintiff's claims in
• 8:17
  Speaker 1: this action that defendants Devine, M. Farwell, and W. Farwell
• 8:22
  Speaker 1: all eventually entered into sexual relationships with Ms. Birchmore. Defendant M.
• 8:26
  Speaker 1: Farwell appears to have been the first as he reportedly
• 8:29
  Speaker 1: took Ms. Birchmore's virginity in April of 2013 when she
• 8:33
  Speaker 1: was 15 years old. Ms. Birchmore's sexual relationship with M.
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  Speaker 1: Farwell continued to at least October 2020. Their relationship allegedly
• 8:43
  Speaker 1: came to an end on the evening of February 1st, 2021,
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  Speaker 1: three days before Ms. Birchmore's body was discovered, after they
• 8:50
  Speaker 1: had a nasty argument inside her apartment in Canton. That
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  Speaker 1: was the last occasion on which anyone saw Ms. Birchmore alive.
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  Speaker 1: At the time of her death, Ms. Birchmore was pregnant
• 9:00
  Speaker 1: with what plaintiff alleges was defendant M. Falwell's child. Defendant
• 9:05
  Speaker 1: Devine had a sexual relationship with Ms. Birchmore as well,
• 9:09
  Speaker 1: although the exact timing and duration of their relationship is
• 9:12
  Speaker 1: less clear. Devine reportedly began engaging in inappropriate suggestive conduct
• 9:17
  Speaker 1: with Ms. Birchmore while she was still a member of
• 9:20
  Speaker 1: the Explorers program, but by 2020, he was having full-fledged
• 9:24
  Speaker 1: sexual encounters with her at various locations, including inside his
• 9:28
  Speaker 1: Stoughton PD patrol car. Defendant Define's relationship with Ms. Birchmore
• 9:33
  Speaker 1: appears to have been ongoing at the time of her death.
• 9:37
  Speaker 1: The precise timing and duration of Defendant W. Farwell's sexual
• 9:40
  Speaker 1: relationship with Ms. Birchmore also is unclear, W. Farwell met Ms.
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  Speaker 1: Birchmore when she was a teenage member of the Explorers
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  Speaker 1: program and their relationship became sexual in nature no later
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  Speaker 1: than April of 2020, at which time he was regularly
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  Speaker 1: sending her explicit texts, photographs, and videos and meeting her
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  Speaker 1: for sex in his patrol car and at other places.
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  Speaker 1: On at least one occasion, he asked and encouraged Ms.
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  Speaker 1: Birchmore also to have sex with other people at the department. W.
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  Speaker 1: Farwell knew that Ms. Birchmore was engaged in sexual relationships
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  Speaker 1: with defendants M. Farwell and Devine and she shared some
• 10:18
  Speaker 1: of the details of those sexual relationships with him. He
• 10:22
  Speaker 1: also knew by late 2020 that Ms. Birchmore believed she
• 10:25
  Speaker 1: was carrying M. Farwell's child. As with Defendant Devine, M.
• 10:30
  Speaker 1: Farwell's relationship with Ms. Birchmore appears to have been ongoing
• 10:33
  Speaker 1: at the time of her death. The history of Defendant
• 10:36
  Speaker 1: Heal's relationship with Ms. Birchmore is different. Heal was never
• 10:40
  Speaker 1: a member of the Stoughton PD, and he never participated
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  Speaker 1: in the Explorer's program. Rather, Heal served for a time
• 10:47
  Speaker 1: as the town's animal control officer, and he first met Ms.
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  Speaker 1: Birchmore when she came to the local animal shelter sometime
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  Speaker 1: in 2019 to adopt a cat. Heal and Ms. Birchmore
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  Speaker 1: became friends, and over time, she began to confide in
• 11:00
  Speaker 1: him about intimate details of her life, including her sexual
• 11:03
  Speaker 1: relationships with defendants M. Farwell and W. Farwell and Devine.
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  Speaker 1: Heal eventually had a single, consensual sexual encounter with Ms.
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  Speaker 1: Birchmore when she was an adult after closing hours at
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  Speaker 1: the animal shelter. That's the full extent of Heal's sexual
• 11:18
  Speaker 1: relationship with Ms. Birchmore. And while Plaintiff alleges that Heal's single,
• 11:23
  Speaker 1: consensual sexual encounter with Ms. Birchmore when she was an
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  Speaker 1: adult contributed to her suicide, she does not allege, and
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  Speaker 1: there's no evidence in the record, that Heal ever cooperated
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  Speaker 1: or conspired with the other defendants to sexually exploit Ms.
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  Speaker 1: Birchmore or to groom her for later sexual exploitation while
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  Speaker 1: she was a teenager. See amended complaint 20 and 21.
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  Speaker 1: The Vine, M. Farwell, and W. Farwell's years-long pattern of
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  Speaker 1: grooming and abuse beginning when Ms. Birchmore was a minor
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  Speaker 1: over the duration of the program and beyond, together with
• 11:55
  Speaker 1: Hill's later abuse, further exasperated the decedent's underlying mental health
• 11:59
  Speaker 1: issues and difficult home life, and eventually resulted in her
• 12:03
  Speaker 1: alleged suicide. On February 4, 2021, Members of the Canton
• 12:08
  Speaker 1: Police Department, the Canton PD, conducted a well-being check of Ms.
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  Speaker 1: Birchmore at her apartment because she had not reported to
• 12:15
  Speaker 1: work for several days, i.e. Report Exhibit 1. Upon entering
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  Speaker 1: the apartment, Canton PD personnel found her unresponsive in a
• 12:24
  Speaker 1: bedroom with a strap tied around her neck that was
• 12:27
  Speaker 1: attached to a closet door. Responding paramedics pronounced her dead
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  Speaker 1: at the scene. All right, we're going to wrap up
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  Speaker 1: right there. And in the next episode, dealing with the topic,
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  Speaker 1: we're going to pick up where we left off. And
• 12:38
  Speaker 1: that's with the discussion. All of the information that goes
• 12:41
  Speaker 1: with this episode can be found in the description box.
• 12:45
  Speaker 1: What's up, everyone? And welcome back to the program. In
• 12:48
  Speaker 1: this episode, we're getting right back to the Sandra Birchmore
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  Speaker 1: court documents. And we're picking up where we left off.
• 12:55
  Speaker 1: And that's with the discussion. One, applicable legal standard. the
• 13:01
  Speaker 1: standard for resolving a motion to dismiss file pursuant to Mass. R. Civ. P. 12b.
• 13:07
  Speaker 1: 6 is well settled. In order to state a claim
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  Speaker 1: upon which relief can be granted, a party's pleading must
• 13:14
  Speaker 1: include factual allegations sufficient to raise a right to relief
• 13:18
  Speaker 1: above the speculative level. Based on the assumption that all
• 13:21
  Speaker 1: the allegations in the pleading are true, even if doubtful
• 13:25
  Speaker 1: in fact, Eniaco v. Ford Motor Company, 451, Mass 623-636-2008.
• 13:31
  Speaker 1: Ian Aquino, eternal quotation marks and citations omitted. The information
• 13:38
  Speaker 1: the court may consider in evaluating a Rule 12b-6 motion
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  Speaker 1: generally is limited to the allegations in the complaint, although
• 13:45
  Speaker 1: matters of public record, orders, items appearing in the record
• 13:49
  Speaker 1: of the case, and exhibits attached to the complaint also
• 13:52
  Speaker 1: may be taken into account. Scherer v. Brandeis University, 432-
• 13:57
  Speaker 1: Mass 474, 477, 2000, internal quotation marks and citation omitted.
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  Speaker 1: The court also must take, as true, such inferences that
• 14:08
  Speaker 1: may be drawn from the allegations of the claim or counterclaim.
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  Speaker 1: In the claimant's favor, Nader v. Citron, 372, Mass 96, 98, 1977.
• 14:19
  Speaker 1: Having in mind the foregoing standard, the court addresses below
• 14:22
  Speaker 1: the legal viability of each of the claims challenged by defendants. 2.
• 14:28
  Speaker 1: Count 1 alleging wrongful death against defendants W. Farwell, Devine,
• 14:32
  Speaker 1: and Heal. Count 1 of plaintiffs amended complaint alleges, in
• 14:36
  Speaker 1: relevant part, that defendants W. Farwell, Devine, and Heal, along
• 14:40
  Speaker 1: with defendant M. Farwell, wrongfully caused Ms. Birchmore's death by
• 14:45
  Speaker 1: engaging in a continuous pattern of grooming and abusive behavior
• 14:49
  Speaker 1: over many years that ultimately overcame Ms. Birchmore's will to
• 14:53
  Speaker 1: live and resulted in her alleged suicide. Amended complaint at 21.
• 14:58
  Speaker 1: The Mass Wrongful Death Act, an individual is liable for
• 15:01
  Speaker 1: wrongful death where his or her negligence or willful, wanton,
• 15:05
  Speaker 1: or reckless actions cause the death of another person. See
• 15:09
  Speaker 1: GLC 229, Section 2. In addition to wrongfulness, it must
• 15:14
  Speaker 1: be shown that the defendant's conduct was a but for
• 15:17
  Speaker 1: cause or plaintiff's injury and that the defendant's conduct was
• 15:21
  Speaker 1: a substantial legal factor in bringing about the alleged harm
• 15:24
  Speaker 1: to the plaintiff. Davis v. United States 670 F. 3D 4853
• 15:30
  Speaker 1: 1st Circuit 2012. In moving to dismiss plaintiff's wrongful death claim, W.
• 15:36
  Speaker 1: Farwell contends that plaintiff has failed to put forward factual
• 15:40
  Speaker 1: allegations that plausibly suggest he owed Ms. Birchmore any duty
• 15:44
  Speaker 1: or that established the requisite causation. Defendant Devine similarly contends,
• 15:50
  Speaker 1: that the amended complaint fails to allege sufficiently specific facts
• 15:54
  Speaker 1: to support Plaintiff's wrongful death claim. These arguments are unavailing.
• 15:59
  Speaker 1: Plaintiff has explicitly alleged in her amended complaint that W.
• 16:03
  Speaker 1: Farwell and Devine use their official positions as police officers
• 16:07
  Speaker 1: involved with the Explorers program to engage in inappropriate behaviors
• 16:12
  Speaker 1: with minors during the program and with Ms. Birchmore while
• 16:15
  Speaker 1: on duty. Amended Complaint 14. The IA report, which is
• 16:20
  Speaker 1: incorporated by reference into the amended complaint, further states that W.
• 16:24
  Speaker 1: Farwell and Devine were observed engaging in an inappropriate physical
• 16:29
  Speaker 1: contact with Ms. Birchmore when she participated in the Explorer's
• 16:32
  Speaker 1: program as a minor. IA Report at 26. The court
• 16:37
  Speaker 1: reads these allegations taken together to plausibly suggest that both W.
• 16:41
  Speaker 1: Farwell and Devine, through their involvement in the Explorers program,
• 16:45
  Speaker 1: had a sufficiently special relationship with Ms. Birchmore to give
• 16:49
  Speaker 1: rise to a duty of care to protect her from
• 16:52
  Speaker 1: foreseeable harm, including defendant's own misconduct. See Brown v. Knight, 362, Mass., 350, 352, 1972.
• 16:56
  Speaker 1: Individuals paid to take control or custody of a child
• 17:05
  Speaker 1: have a duty to protect child from foreseeable harm. See also,
• 17:09
  Speaker 1: Huynh v. MIT, 479, Mass. 436, 448, and 449, 2018.
• 17:17
  Speaker 1: We have recognized that special relationships may arise in certain
• 17:20
  Speaker 1: circumstances in posing affirmative duties of reasonable care. C.F. Alter v.
• 17:26
  Speaker 1: City of Newton, 35, Mass. Appeals Court, 142, 145, 1993.
• 17:32
  Speaker 1: Because of the relationship between a school and its students,
• 17:35
  Speaker 1: the city had a duty of care to the plaintiff
• 17:37
  Speaker 1: to provide her with reasonably safe school premises. As previously noted,
• 17:42
  Speaker 1: plaintiff's amended complaint also alleges, consistent with the IA report,
• 17:47
  Speaker 1: that W. Farwell and Devine's continuous pattern of grooming and
• 17:51
  Speaker 1: abusive behavior ultimately overcame Ms. Birchmore's will to live and
• 17:55
  Speaker 1: resulted in her alleged suicide. Amended complaint at 21. Fairly read,
• 18:01
  Speaker 1: these additional allegations plausibly suggest that W. Farwell and Devine's
• 18:06
  Speaker 1: conduct was the cause of the decedent's uncontrollable suicidal impulse,
• 18:12
  Speaker 1: which is a recognized basis for permitting recovery under negligence
• 18:16
  Speaker 1: principles for a person's suicide. See Nelson v. Mass Port Authority, 55,
• 18:20
  Speaker 1: Mass Appeals Court, 433, 435, 2002, Nelson. For these reasons, W.
• 18:22
  Speaker 1: Farwell says, and Devine's motions to dismiss plaintiff's claim for
• 18:31
  Speaker 1: wrongful death must be denied. The outcome is different, however,
• 18:36
  Speaker 1: with respect to defendant Heal. Unlike W. Farwell and Devine,
• 18:40
  Speaker 1: Heal was an animal control officer who, by plaintiff's own
• 18:43
  Speaker 1: admission at oral argument, had no involvement with the Stoughton
• 18:47
  Speaker 1: PD's Explorers program, and whose only alleged misdeed was having
• 18:51
  Speaker 1: consensual sex with Ms. Birchmore on one occasion when she
• 18:54
  Speaker 1: was an adult. A sexual or romantic relationship between two
• 18:58
  Speaker 1: people is not by itself sufficient to create a special
• 19:02
  Speaker 1: relationship that imposes a duty of care on the part
• 19:05
  Speaker 1: of one partner to protect the other partner from foreseeable harm.
• 19:09
  Speaker 1: CEG Decambra v. Carson 953 A2D 1163-1166 2008 No fiduciary
• 19:12
  Speaker 1: duty imposed or special relationship existed between girlfriend and her
• 19:22
  Speaker 1: live-in boyfriend who was killed by girlfriend's ex-boyfriend at girlfriend's
• 19:26
  Speaker 1: home so as to give rise to a duty on
• 19:28
  Speaker 1: the part of the girlfriend to prevent harm. Thus, defendant
• 19:31
  Speaker 1: Hill differs from the other individual defendants in that he
• 19:35
  Speaker 1: had no legal duty to protect Ms. Birchmore from foreseeable harm,
• 19:39
  Speaker 1: including any harm she might inflict upon herself. Accordingly, Hill's
• 19:43
  Speaker 1: motion to dismiss plaintiff's wrongful death claim against him must
• 19:47
  Speaker 1: be allowed. C.E.G. Coughlin versus Titus and Bean Graphics Incorporated.
• 19:52
  Speaker 1: 54 Mass. Appeals Court 633-641-2002. Coughlin plaintiff wrongful death. And
• 20:01
  Speaker 1: negligence claims properly dismissed on a summary judgment. Where as
• 20:04
  Speaker 1: a matter of law. The defendant owed the victim no
• 20:07
  Speaker 1: legal duty. 3. Count 2, alleging negligent failure to protect Ms.
• 20:12
  Speaker 1: Birchmore on the part of defendants W. Farwell, Devine, and Heal.
• 20:16
  Speaker 1: Count 2, a plaintiff's amended complaint, alleges in relevant part
• 20:20
  Speaker 1: that defendants W. Farwell, Devine, and Heal, along with defendant M. Farwell,
• 20:25
  Speaker 1: negligently failed in their duty to protect Ms. Birchmore by
• 20:28
  Speaker 1: undertaking inappropriate actions against Ms. Birchmore over the course of
• 20:34
  Speaker 1: several years. Amended Complaint 25. The reasoning set forth above
• 20:38
  Speaker 1: with respect to plaintiff's wrongful death claim against defendants W. Farwell, Devine,
• 20:44
  Speaker 1: and Heal applies with equal force to this negligence claim. Specifically,
• 20:48
  Speaker 1: the allegations a plaintiff's amended complaint plausibly suggests that defendants W.
• 20:53
  Speaker 1: Farwell and Devine, acting in their roles as police officers
• 20:57
  Speaker 1: and participants, in the Stoughton PD's Explorer Program, had a
• 21:01
  Speaker 1: duty to protect Ms. Birchmore from foreseeable harm, and that
• 21:05
  Speaker 1: their repeated breach of that duty over a period of
• 21:07
  Speaker 1: years ultimately caused Ms. Birchmore's alleged suicide. Thus, dismissal of
• 21:12
  Speaker 1: plaintiff's negligence claim against W. Farwell and Devine is not warranted.
• 21:17
  Speaker 1: See Brown 362, Mass at 352, Nelson 55, Mass Appeals
• 21:19
  Speaker 1: Court at 435. Conversely, because defendant Heal had no legal
• 21:27
  Speaker 1: duty to protect Ms. Birchmore from harm, plaintiff's negligence claim
• 21:31
  Speaker 1: against Heal must be dismissed. See Coughlin 54, Mass Appeals
• 21:35
  Speaker 1: Court at 641. 4. Count 3. Alleging negligent failure to
• 21:40
  Speaker 1: protect Ms. Birchmore on the part of defendant Devine. Count
• 21:44
  Speaker 1: 3 of plaintiffs amended a complaint alleges in relevant part
• 21:48
  Speaker 1: that defendant Devine is head of the Explorers Programme breached
• 21:51
  Speaker 1: his duty to Ms. Birchmore by failing to protect her
• 21:54
  Speaker 1: from the conduct of the Farwells. Amended Complaint at 31.
• 21:59
  Speaker 1: Devine contends that Count 3 must be dismissed because the
• 22:02
  Speaker 1: amended complaint fails to set forth sufficient factual allegations to
• 22:06
  Speaker 1: support this claim. The court disagrees. As previously mentioned, plaintiff's
• 22:11
  Speaker 1: amended complaint incorporates the IA report by reference. The IA
• 22:16
  Speaker 1: report contains first-hand information from at least one person who
• 22:19
  Speaker 1: directly observed defendants M. Farwell, W. Farwell, and Devine engage
• 22:25
  Speaker 1: in inappropriate physical contact, hugging, kissing, and unspecified inappropriate contact
• 22:30
  Speaker 1: in a closet with minor girls in the Explorers program.
• 22:34
  Speaker 1: IA report at 26. The IA report also contains information
• 22:39
  Speaker 1: indicating that Devine was aware of Ms. Birchmore's pregnancy by M. Farwell.
• 22:44
  Speaker 1: Idea 28. These facts in and of themselves are sufficient
• 22:48
  Speaker 1: to support the plaintiff's claim that Devine negligently failed in
• 22:51
  Speaker 1: his duty to protect Ms. Birchmore from sexual exploitation by
• 22:55
  Speaker 1: defendants M. Farwell and W. Farwell. The court, as a result,
• 23:00
  Speaker 1: will deny the motion by Devine to dismiss count number three.
• 23:05
  Speaker 1: Number five. Count five alleging negligent hiring by the town.
• 23:09
  Speaker 1: Count five of plaintiffs amended complaint alleges, in relevant part,
• 23:12
  Speaker 1: that the town was negligent in hiring defendant M. Farwell
• 23:16
  Speaker 1: and W. Farwell to be members of the Stoughton PD.
• 23:20
  Speaker 1: Amended complaint at 39. This claim is barred under Section
• 23:24
  Speaker 1: 10B of the Mass Torts Claim Act, GLC 258, Section 1. MTCA,
• 23:30
  Speaker 1: which precludes the imposition of civil liability on governmental entities
• 23:35
  Speaker 1: and employees based on the exercise or performance of a
• 23:38
  Speaker 1: discretionary function or duty. GL 258 Section 10b Massachusetts law
• 23:45
  Speaker 1: is clear that, in the task of selecting public employees
• 23:48
  Speaker 1: of skill and integrity, appointing authorities are invested with broad discretion. Thus,
• 23:54
  Speaker 1: the town's decision to hire M. Farwell and W. Farwell
• 23:57
  Speaker 1: was the exercise of discretionary function of which the town
• 24:01
  Speaker 1: cannot be held liable in tort. The court will allow
• 24:04
  Speaker 1: the town's motion to dismiss count four as a result. 6.
• 24:09
  Speaker 1: Count 5 alleging negligent supervision by the town. Count 5
• 24:13
  Speaker 1: of plaintiffs' amended complaint alleges, in relevant part, that a.
• 24:17
  Speaker 1: Through the Explorers Program, the town provided M. Farwell, W. Farwell,
• 24:21
  Speaker 1: and Devine access to the highly vulnerable population of minors,
• 24:25
  Speaker 1: including Ms. Birchmore. b. The town had a duty to
• 24:28
  Speaker 1: protect these children from foreseeable harms, which would be inflicted
• 24:32
  Speaker 1: or could be inflicted by its employees. c. The town...
• 24:37
  Speaker 1: breached the duty by failing to protect Ms. Birchmore from
• 24:40
  Speaker 1: the harm suffered over the duration of the Explorers program
• 24:43
  Speaker 1: and thereafter. Amended complaint at 44 and 46. The town
• 24:48
  Speaker 1: contends that this claim is barred by Section 10J of
• 24:52
  Speaker 1: the MTCA, which precludes the imposition of civil liability on
• 24:56
  Speaker 1: governmental entities and employees based on an act or failure.
• 25:01
  Speaker 1: to act to prevent or diminish the harmful consequences of
• 25:04
  Speaker 1: a condition or situation, including the violent or tortious conduct
• 25:09
  Speaker 1: of a third person, which is not originally caused by
• 25:11
  Speaker 1: the public employer, or any other person acting on behalf
• 25:15
  Speaker 1: of the public employer. GL 258 Section 10J According to
• 25:20
  Speaker 1: the town, its alleged negligent supervision of defendant M. Farwell, W. Farwell,
• 25:24
  Speaker 1: and Devine in their roles as police officers was not
• 25:27
  Speaker 1: the original cause of Ms. Birchmore's alleged suicide, and no
• 25:31
  Speaker 1: inference of causation can be drawn from plaintiff's amended complaint.
• 25:35
  Speaker 1: The court disagrees. Section 10J of the MTCA does not
• 25:39
  Speaker 1: apply in the circumstances of this case because the plaintiff
• 25:43
  Speaker 1: has plausibly alleged that Ms. Birchmore's death was originally caused
• 25:47
  Speaker 1: not by the tortious conduct of a third person, but
• 25:49
  Speaker 1: by the town's own employees. Its alleged affirmative acts of M. Farwell, W. Farwell,
• 25:55
  Speaker 1: and Devine in grooming and sexually abusing Ms. Birchmore over
• 25:59
  Speaker 1: a period of years that plaintiff claims ultimately overcame Ms.
• 26:03
  Speaker 1: Birchmore's will to live and resulted in her alleged suicide.
• 26:07
  Speaker 1: Amended Complaint 21. Such affirmative action by governmental personnel does
• 26:13
  Speaker 1: not fall within the exception contained in Section 10J. See
• 26:17
  Speaker 1: Serral v. Franklin County, 47 Mass, Appeals Court 400-405, 1999,
• 26:24
  Speaker 1: reversing entry of summary judgment for defendant under MTCA on
• 26:28
  Speaker 1: the basis that plaintiffs sought to hold the county liable
• 26:31
  Speaker 1: not only for what its correctional officers failed to do,
• 26:34
  Speaker 1: but what they did do. The court is also persuaded
• 26:37
  Speaker 1: that the allegations a plaintiff's amended complaint, combined with the
• 26:41
  Speaker 1: information contained in the IA report that the complaint incorporates
• 26:45
  Speaker 1: by reference, provides facts sufficient to permit a jury to
• 26:48
  Speaker 1: reasonably infer that the town actually was negligent in its
• 26:52
  Speaker 1: supervision of M. Farwell, W. Farwell, and Devine. In addition
• 26:57
  Speaker 1: to evidence that these three defendants all openly engaged in
• 27:01
  Speaker 1: inappropriate physical contact with young female participants in the Explorers program,
• 27:06
  Speaker 1: IA reported 26. plaintiff also has come forward with evidence
• 27:10
  Speaker 1: that other Stoughton PD personnel were aware, prior to Ms.
• 27:14
  Speaker 1: Birchmore's death, that Ms. Birchmore was involved in an on-again,
• 27:18
  Speaker 1: off-again sexual relationship with M. Farwell. Viewing these facts and
• 27:22
  Speaker 1: others in the light most favorable to plaintiff, the court
• 27:25
  Speaker 1: concludes that plaintiff has, at the very least, raised her
• 27:28
  Speaker 1: negligent supervision claim above the speculative level. Accordingly, the court
• 27:34
  Speaker 1: will deny the town's motion to dismiss count number five
• 27:38
  Speaker 1: All right, we're going to wrap up right here. And
• 27:40
  Speaker 1: in the next episode dealing with the topic, we're going
• 27:42
  Speaker 1: to pick up with count number six, alleging assault and
• 27:45
  Speaker 1: battery of Ms. Birchmore by defendant W. Farwell Devine and Hill.
• 27:51
  Speaker 1: All of the information that goes with this episode can
• 27:54
  Speaker 1: be found in the description box. What's up, everyone? And
• 27:58
  Speaker 1: welcome back to the program. In this episode, we're picking
• 28:01
  Speaker 1: right back up where we left off with the Sandra
• 28:03
  Speaker 1: Birchmore order. Seven. Count six, alleging assault and battery of Ms.
• 28:09
  Speaker 1: Birchmore by defendants W. Farwell, Devine, and Heal. Count six
• 28:14
  Speaker 1: of plaintiffs' amended complaint alleges, in relevant part, that defendants W. Farwell, Devine,
• 28:20
  Speaker 1: and Heal, along with defendant M. Farwell, by their previously
• 28:24
  Speaker 1: referenced conduct, committed sexual assault and battery on Ms. Birchmore.
• 28:28
  Speaker 1: A claim for civil assault lies where the defendant commits
• 28:32
  Speaker 1: an act done with the intention of causing a harmful
• 28:35
  Speaker 1: or offensive contact with the person of the other or
• 28:39
  Speaker 1: in imminent apprehension of such a contact. The other is
• 28:43
  Speaker 1: thereby put in such imminent apprehension. Guzman v. Pring-Wilson, 81, Mass.
• 28:48
  Speaker 1: Appeals Court 430-434, 2012 Quoting Restatement 2nd of Torts, Section 21-1,
• 28:56
  Speaker 1: 1965 A claim of civil battery exists where the defendant
• 29:00
  Speaker 1: engages in an intentional touching that was offensive to the victim,
• 29:05
  Speaker 1: meaning without consent. Gallagher v. South Shore Hospital, Inc., 101,
• 29:10
  Speaker 1: Mass Appeals Court, 807, 834, 2022, quoting Commonwealth v. Cohen, 55,
• 29:16
  Speaker 1: Mass Appeals Court, 358, 359, 2002. W. Farwell argues that
• 29:23
  Speaker 1: Count 6 must be dismissed as against him because the
• 29:27
  Speaker 1: amended complaint does not allege anything more than a sexual
• 29:30
  Speaker 1: relationship between between consenting adults and because the complaint contains
• 29:34
  Speaker 1: no specific allegations regarding Ms. Birchmore's state of mind. Devine
• 29:38
  Speaker 1: likewise argues that Count 6 must be dismissed as against
• 29:42
  Speaker 1: him because the amended complaint does not allege facts sufficient
• 29:46
  Speaker 1: to establish that he ever committed an assault and or
• 29:49
  Speaker 1: battery on Ms. Birchmore. Neither defendant's arguments regarding Count 6
• 29:53
  Speaker 1: are persuasive. The allegations of plaintiff's amended complaint, combined with
• 29:58
  Speaker 1: the content's of the incorporated IA report provide substantial and
• 30:02
  Speaker 1: oftentimes graphic factual support for the proposition that W. Farwell
• 30:07
  Speaker 1: and Devine, along with defendant M. Farwell, engaged in a
• 30:11
  Speaker 1: continuous pattern of grooming and abusive behavior directed towards Ms. Birchmore,
• 30:16
  Speaker 1: beginning when she was a minor and eventually becoming overtly
• 30:19
  Speaker 1: sexual in nature. Whether Ms. Birchmore, who purportedly suffered from
• 30:24
  Speaker 1: significant mental and emotional problems throughout her life, amended complaint, 10.
• 30:29
  Speaker 1: Have the capacity to consent to any of defendant's conduct
• 30:32
  Speaker 1: presents an issue of fact that cannot be resolved at
• 30:35
  Speaker 1: the motion to dismiss stage. See Commonwealth v. Burke 390
• 30:39
  Speaker 1: Mass 480-482-1983. The capacity to consent to sexual touching is
• 30:45
  Speaker 1: an issue of fact. See Fralick v. Perkitt P.R. Inc.
• 30:48
  Speaker 1: 83 Mass Appeals Court 698-708-2013. Tort claim that requires an
• 30:57
  Speaker 1: assessment of defendant's state of mind not properly resolved on
• 31:00
  Speaker 1: a motion to dismiss, but rather should be evaluated on
• 31:04
  Speaker 1: the basis of factual record. For these reasons, the court
• 31:07
  Speaker 1: will deny W. Farwell and Devine's motions to dismiss count
• 31:11
  Speaker 1: number six. Once again, the outcome is different with respect
• 31:15
  Speaker 1: to plaintiff's assault and battery claim against defendant Heal. As
• 31:19
  Speaker 1: previously noted, Heal's only alleged misdeed was having consensual sex
• 31:23
  Speaker 1: with Ms. Birchmore on a single occasion, when she was
• 31:26
  Speaker 1: an adult. Mass law holds that consensual contact between adults
• 31:31
  Speaker 1: does not constitute either an assault or a battery. See
• 31:34
  Speaker 1: Commonwealth v. Askins, 18 Mass. Appeals Court, 927, 929, and 1, 1984.
• 31:40
  Speaker 1: The words assault and battery have a well-understood common law
• 31:44
  Speaker 1: signification that precludes consensual acts. Accordingly, Hill's motion to dismiss
• 31:50
  Speaker 1: count number six as it pertains to him must be allowed. Eight.
• 31:55
  Speaker 1: Count seven, alleging negligent infliction of emotional distress on Ms.
• 31:59
  Speaker 1: Birchmore's family by all defendants. Count seven of plaintiff's amended
• 32:04
  Speaker 1: complaint sees compensation for the emotional distress that all of
• 32:07
  Speaker 1: the defendants allegedly inflicted on the family of Ms. Birchmore
• 32:11
  Speaker 1: through their purported negligence. Amended complaint 54 through 56. This
• 32:17
  Speaker 1: claim cannot succeed as a matter of law. Only a
• 32:20
  Speaker 1: bystander plaintiff who is closely related to a third person
• 32:23
  Speaker 1: directly injured by a defendant's tortious conduct, and suffers emotional
• 32:28
  Speaker 1: injuries as a result of witnessing the accident or coming
• 32:31
  Speaker 1: upon the third person soon after the accident, states a claim.
• 32:35
  Speaker 1: For negligent infliction of emotional distress, for which relief may
• 32:39
  Speaker 1: be granted. In this case, it's undisputed that Ms. Birchmore
• 32:41
  Speaker 1: died alone by an apparent suicide in her apartment in Canton,
• 32:54
  Speaker 1: on or after February 1st, 2021, and that her death
• 32:57
  Speaker 1: subsequently was discovered by members of the Canton PD, not
• 33:01
  Speaker 1: by any members of her immediate family. IA report exhibit 1.
• 33:06
  Speaker 1: Because the undisputed facts do not support a claim for
• 33:09
  Speaker 1: negligent infliction of emotional distress on Ms. Birchmore's family, count
• 33:13
  Speaker 1: 7 will be dismissed against all defendants. Number 9. Count
• 33:18
  Speaker 1: eight alleging negligent infliction of emotional distress on Ms. Birchmore
• 33:23
  Speaker 1: by all defendants. Count eight of plaintiffs amended complaint seeks
• 33:27
  Speaker 1: compensation for the emotional distress that all of the defendants
• 33:30
  Speaker 1: allegedly inflicted on Ms. Birchmore herself through their purported negligence.
• 33:35
  Speaker 1: Amended complaint 58 through 62. To recover for negligent affliction
• 33:41
  Speaker 1: of emotional distress, a plaintiff must demonstrate 1. Negligence, 2.
• 33:46
  Speaker 1: Emotional distress, 3. Causation, 4. Physical harm manifested by objective symptomology,
• 33:53
  Speaker 1: and 5. That a reasonable person would have suffered emotional
• 33:56
  Speaker 1: distress under the circumstances of the case. Peyton v. Abbott Labs,
• 34:00
  Speaker 1: 386 Mass, 540-557, 1982, Peyton. Each of the defendants has
• 34:07
  Speaker 1: moved to dismiss this claim. The court addresses each defendant's
• 34:11
  Speaker 1: motion in turn. First, defendant W. Farwell contends that plaintiff's
• 34:16
  Speaker 1: negligent infliction of emotional distress claim must be dismissed as
• 34:20
  Speaker 1: it pertains to him because the amended complaint purportedly does
• 34:23
  Speaker 1: not allege that Ms. Birchmore suffered any physical harm manifested
• 34:27
  Speaker 1: by objective symptomology. The argument is unpersuasive. The purpose of
• 34:32
  Speaker 1: the physical harm requirement is to ensure that plaintiffs can
• 34:36
  Speaker 1: corroborate their mental distress claims with enough objective evidence to
• 34:39
  Speaker 1: harm to convince a judge that their claims present a
• 34:43
  Speaker 1: sufficient likelihood of genuineness to go to trial. Sullivan v.
• 34:47
  Speaker 1: Boston Gas Company, 414 Mass, 129, 137-138, 1993. The court
• 34:55
  Speaker 1: believes that, in this case, Ms. Birchmore's apparent suicide provides sufficient,
• 34:59
  Speaker 1: objective evidence of harm and demonstrates that, a sufficient likelihood
• 35:04
  Speaker 1: of genuineness to permit plaintiff's claim for negligent infliction of
• 35:08
  Speaker 1: emotional distress on Ms. Birchmore to go to trial. Accordingly, W.
• 35:12
  Speaker 1: Farwell's motion to dismiss count eight will be denied. Second,
• 35:17
  Speaker 1: defendant Devine contends that plaintiff's negligent infliction of emotional distress
• 35:22
  Speaker 1: claim must be dismissed as it pertains to him because
• 35:24
  Speaker 1: the amended complaint purportedly is devoid of any specific facts
• 35:29
  Speaker 1: which demonstrate that he actually engaged in any grooming or
• 35:32
  Speaker 1: abuse of Ms. Birchmore. This argument conveniently ignores the contents
• 35:37
  Speaker 1: of the IA report which is incorporated in the amended
• 35:41
  Speaker 1: complaint by reference. As the court has already explained, the
• 35:45
  Speaker 1: IA report provides substantial and frequently detailed factual support for
• 35:51
  Speaker 1: the proposition that Devine, along with defendants M. Farwell and W. Farwell,
• 35:57
  Speaker 1: engaged in a continuous pattern of grooming and sexually abusive
• 36:00
  Speaker 1: behavior directed towards Ms. Birchmore, beginning when she was a minor.
• 36:05
  Speaker 1: The evidence provided, viewed in the light most favorable to plaintiff,
• 36:09
  Speaker 1: is more than sufficient. to sustain her claim against Devine
• 36:13
  Speaker 1: for negligently inflicting emotional distress on Ms. Birchmore. See Peyton
• 36:18
  Speaker 1: 386 Mass at 557. Accordingly, Devine's motions to dismiss Count
• 36:24
  Speaker 1: 8 also will be denied. Third, the town contends that
• 36:28
  Speaker 1: it's immune from plaintiff's negligent infliction of emotional distress claim
• 36:32
  Speaker 1: under Section 10J of the MTCA because its alleged negligence
• 36:37
  Speaker 1: was not the original cause of Ms. Birchmore's suicide. The
• 36:41
  Speaker 1: court previously considered and rejected this argument in deciding the
• 36:44
  Speaker 1: town's motion to dismiss plaintiff's negligent supervision claim. See discussion, recount, supra,
• 36:51
  Speaker 1: the same reasoning, and the same result apply to plaintiff's
• 36:55
  Speaker 1: claim against the town for negligent infliction of emotional distress
• 36:59
  Speaker 1: on Ms. Birchmore. Accordingly, the town's motion to dismiss count
• 37:03
  Speaker 1: eight also will be denied. Lastly, defendant Heal's motion to
• 37:08
  Speaker 1: dismiss count 8 as it pertains to him will be
• 37:11
  Speaker 1: allowed because the court already has determined that Heal has
• 37:14
  Speaker 1: no legal duty to protect Ms. Birchmore from foreseeable harm
• 37:18
  Speaker 1: and therefore cannot be deemed to have acted negligently as
• 37:21
  Speaker 1: a matter of law. See Coughlin, 54 Mass Appeals Court
• 37:26
  Speaker 1: at 651. 10. Count 9. Alleging civil rights violations by
• 37:31
  Speaker 1: all defendants pursuant to U.S. Code 42, Section 1983. Count
• 37:37
  Speaker 1: nine of plaintiffs' amended complaint alleges, pursuant to U.S. Code 42,
• 37:42
  Speaker 1: Section 1983, that all defendants violated Ms. Birchmore's civil rights
• 37:46
  Speaker 1: by grooming and or sexually abusing Ms. Birchmore over the
• 37:50
  Speaker 1: period of years, or by permitting such conduct to occur
• 37:53
  Speaker 1: under the color of law. Amended Complaint 64-73. Each of
• 37:58
  Speaker 1: the defendants has moved to dismiss this claim and as
• 38:01
  Speaker 1: before the court addresses each defendant's motion in turn. First,
• 38:06
  Speaker 1: defendant W. Farwell contends that plaintiff section 1983 claim must
• 38:11
  Speaker 1: be dismissed as it pertains to him because he did
• 38:13
  Speaker 1: not act under the color of law and no constitutional
• 38:16
  Speaker 1: violations occurred. The court disagrees. A defendant acts under color
• 38:21
  Speaker 1: of law if he exercises power possessed by virtue of
• 38:24
  Speaker 1: state law and made possible only because the wrongdoer is
• 38:27
  Speaker 1: clothed with the authority of state law. West v. Atkins, 487, U.S. 42,
• 38:34
  Speaker 1: and 49, 1988. Here the amended complaint alleges that W.
• 38:39
  Speaker 1: Farwell began his inappropriate conduct towards Ms. Birchmore while he
• 38:43
  Speaker 1: was an officer and educator. and she was a youthful
• 38:47
  Speaker 1: participant in the Stoughton PD Explorers Program. Amended Complaint 11, 14,
• 38:52
  Speaker 1: and 20. If proven, these allegations are sufficient to establish
• 38:56
  Speaker 1: that W. Farwell acted under color of law, West 487 U.S.
• 38:59
  Speaker 1: at 49. Furthermore, sexual assault is a sufficient violation of
• 39:05
  Speaker 1: an individual's federal and constitutional rights to support a claim
• 39:09
  Speaker 1: under Section 1983. See Bennett v. Pippin, 74, F. 3D 578, 586,
• 39:16
  Speaker 1: 5th Circuit, 1996. Sheriff's use of authority over murder investigation
• 39:22
  Speaker 1: to coerce sex with female suspect violated Section 1983. For
• 39:27
  Speaker 1: these reasons, W. Farwell's motion to dismiss count number nine
• 39:31
  Speaker 1: will be denied. Second defendant Devine contends, much as he
• 39:35
  Speaker 1: has done previously, that plaintiff's Section 1983 claim must be
• 39:39
  Speaker 1: dismissed as it pertains to him because her amended complaint
• 39:42
  Speaker 1: purportedly lacks sufficient factual allegations to support the claim. The
• 39:47
  Speaker 1: court again rejects this all-purpose argument for the reasons previously stated.
• 39:52
  Speaker 1: CEG discussion, count 8. Accordingly, Devine's motion to dismiss count
• 39:58
  Speaker 1: number 9 will be denied. Third, the town contends that
• 40:01
  Speaker 1: the plaintiff section 1983 claim must be dismissed as it
• 40:05
  Speaker 1: pertains to the town because the three-year statute of limitations
• 40:09
  Speaker 1: purportedly has expired. Plaintiff purportedly has not alleged any constitutional violation,
• 40:16
  Speaker 1: and there purportedly is no evidence that the town was
• 40:19
  Speaker 1: deliberately indifferent to Ms. Birchmore's rights. None of these arguments, however,
• 40:23
  Speaker 1: provide grounds to dismiss Plaintiff Section 1983 claim at this time.
• 40:29
  Speaker 1: For example, the court cannot presently determine whether Plaintiff Section
• 40:33
  Speaker 1: 1983 claim is time-barred because the claim potentially is subject
• 40:37
  Speaker 1: to the federal discovery rule. Under the federal discovery rule,
• 40:41
  Speaker 1: accrual of a tort claim is delayed until the plaintiff
• 40:44
  Speaker 1: knows or should know of the acts comprising the violation. Specifically,
• 40:49
  Speaker 1: a plaintiff must or should be aware of both the
• 40:53
  Speaker 1: fact of his or her injury and the injury's likely
• 40:55
  Speaker 1: caused connection with the putative defendant. Ouellette v. Bupre, 977 F. 3D 127-136,
• 41:00
  Speaker 1: 1st Circuit, 2020 Whether Ms. Birchmore knew or should have
• 41:09
  Speaker 1: known about her injuries and their causal connection to defendants'
• 41:12
  Speaker 1: allegedly wrongful conduct is a factual question that is not
• 41:16
  Speaker 1: appropriate for resolution on a motion to dismiss. See Patsos v.
• 41:21
  Speaker 1: 1st Albany Corp. 433 Mass. 323-329-2001. Factual disputes concerning when
• 41:28
  Speaker 1: a plaintiff knew or should have known of his cause
• 41:31
  Speaker 1: of action are to be resolved by the jury. Similarly,
• 41:34
  Speaker 1: it's not possible to determine at this early stage of
• 41:37
  Speaker 1: the case whether the town was deliberately indifferent to Ms.
• 41:41
  Speaker 1: Birchmore's rights. Deliberate indifference can manifest itself in an unofficial
• 41:46
  Speaker 1: custom as evidenced by widespread action or inaction McElroy v.
• 41:50
  Speaker 1: City of Lowell 741 F.S.U.P.P. 2D 349 353 Mass 2010.
• 41:58
  Speaker 1: And once again, there's evidence in the IA report that
• 42:02
  Speaker 1: other Stoughton PD personnel were aware well prior to Ms.
• 42:05
  Speaker 1: Birchmore's death that she was involved in an on-again, off-again
• 42:09
  Speaker 1: sexual relationship with at least M. Farwell. IA report at 41.
• 42:14
  Speaker 1: Whether the town's inaction, in the face of this information,
• 42:17
  Speaker 1: or any other relevant information it may have possessed, constitutes
• 42:21
  Speaker 1: deliberate indifference, is another question that the court cannot resolve
• 42:25
  Speaker 1: on a motion to dismiss. CEG Watkins v. Gosch, 2011
• 42:29
  Speaker 1: WL 5981006 at 5. Generally, the finding of deliberate indifference
• 42:37
  Speaker 1: is a fact-intensive assessment that cannot be resolved on a
• 42:40
  Speaker 1: motion to dismiss. For these reasons, the town's motion to
• 42:43
  Speaker 1: dismiss count number nine will be denied. Lastly, defendant Hill's
• 42:48
  Speaker 1: motion to dismiss count number nine as it pertains to
• 42:51
  Speaker 1: him will be allowed because his single, consensual, sexual encounter
• 42:55
  Speaker 1: with Ms. Birchmore when she was an adult Count 10.
• 42:58
  Speaker 1: Alleging civil conspiracy on the part of defendants W. Farwell, Devine,
• 43:01
  Speaker 1: and Heal. Count 10 of plaintiffs amended complaint. alleges in
• 43:21
  Speaker 1: relevant part that defendants W. Farwell, Devine, and Heal, along
• 43:25
  Speaker 1: with defendant M. Farwell, unlawfully conspired and worked in concert
• 43:29
  Speaker 1: with each other to coerce and manipulate Ms. Birchmore into
• 43:33
  Speaker 1: engaging in illicit sexual activities, amended complaint at 76. It
• 43:38
  Speaker 1: further alleges that the actions of the defendants were particularly
• 43:42
  Speaker 1: coercive due to their position as officers. The Supreme Judicial
• 43:47
  Speaker 1: Court recently has stated that Mass law recognizes two distinct
• 43:51
  Speaker 1: theories of liability under the umbrella term of civil conspiracy,
• 43:55
  Speaker 1: concerted action conspiracy, and true conspiracy based on co-conspirators exerting
• 44:01
  Speaker 1: some peculiar power of coercion. Green v. Philip Morris, USA Inc., 491, Mass, 866-871-2023.
• 44:11
  Speaker 1: The former theory applies to a common plan to commit
• 44:14
  Speaker 1: a tortious act where the participants know of the plan
• 44:17
  Speaker 1: and its purpose and take affirmative steps to encourage the
• 44:20
  Speaker 1: achievement of the result. The latter theory requires proof that
• 44:25
  Speaker 1: the alleged conspirators agreed to accomplish an unlawful purpose or
• 44:29
  Speaker 1: a lawful purpose by unlawful means and then caused harm
• 44:32
  Speaker 1: to plaintiff via some peculiar power of coercion that they
• 44:36
  Speaker 1: would not have had had they been acting independently. And
• 44:40
  Speaker 1: Farwell argues that Count 10 must be dismissed as against
• 44:43
  Speaker 1: him because the amended complaint does not allege that there
• 44:46
  Speaker 1: was a common plan among the defendants to commit a
• 44:48
  Speaker 1: tort or to coerce Ms. Birchmore. Devine similarly contends that
• 44:53
  Speaker 1: plaintiff's allegations are insufficient to support a claim for civil conspiracy.
• 44:58
  Speaker 1: These arguments, however, ignore the plain language of the amended complaint, which,
• 45:03
  Speaker 1: as previously noted, clearly states that W. Farwell, M. Farwell,
• 45:07
  Speaker 1: and Devine worked in concert with each other to coerce
• 45:10
  Speaker 1: and manipulate Ms. Birchmore into engaging in illicit sexual activities,
• 45:15
  Speaker 1: and that these defendants held particular sway over Ms. Birchmore
• 45:19
  Speaker 1: due to their positions as officers. Amended Complaints 76 and 77.
• 45:24
  Speaker 1: Defendants' arguments also ignore evidence in the IA report that M.
• 45:28
  Speaker 1: Farwell actively solicited Ms. Birchmore to have sex with some
• 45:32
  Speaker 1: people at the department, from which a jury reasonably could
• 45:36
  Speaker 1: infer that M. Farwell, W. Farwell, and Devine coordinated their
• 45:40
  Speaker 1: alleged sexual encounters with Ms. Birchmore. IA reported 25. Taken together,
• 45:46
  Speaker 1: the allegations and information cited, viewed in the light most
• 45:49
  Speaker 1: favorable to plaintiff, are sufficient to sustain her claim against M.
• 45:54
  Speaker 1: Farwell and Devine for civil conspiracy. See Green, 491, Mass
• 45:59
  Speaker 1: at 871, 875, and 10. Accordingly, W. Farwell and Devine's
• 46:04
  Speaker 1: motions to dismiss Count 10 will be denied. Defendant Heal,
• 46:08
  Speaker 1: on the other hand, cannot be held liable. for civil
• 46:10
  Speaker 1: conspiracy as a matter of law because plaintiffs own admission
• 46:14
  Speaker 1: at oral argument. Heal did not work in concert with
• 46:18
  Speaker 1: or by agreement with any other defendant in arranging his
• 46:21
  Speaker 1: single consensual sexual encounter with Ms. Birchmore when she was
• 46:25
  Speaker 1: an adult. Accordingly, Heal's motion to dismiss count 10 as
• 46:29
  Speaker 1: it pertains to him must be allowed. 12. Other Pending
• 46:33
  Speaker 1: Motions The court will allow W. Farwell's motion to dismiss
• 46:37
  Speaker 1: Heal's cross claims against him for contribution and identification. Heel
• 46:42
  Speaker 1: only could obtain contribution from W. Farwell if he was
• 46:47
  Speaker 1: found to be jointly liable and tort with W. Farwell
• 46:50
  Speaker 1: for Ms. Birchmore's injuries, C.G.L.C. 231B Section 1A, which no
• 46:56
  Speaker 1: longer can occur because the court is dismissing all of
• 46:59
  Speaker 1: the plaintiff's claims against Heel. Similarly, Heel only could obtain
• 47:03
  Speaker 1: identification from W. Farwell if he were found to be
• 47:08
  Speaker 1: part or liable for W. Farwell's alleged wrongful acts, CEG
• 47:12
  Speaker 1: Ferreira v. Chrysler Group, 468 Mass. 336-334, 2014. The right
• 47:19
  Speaker 1: to indemnity is limited to those cases where the person
• 47:23
  Speaker 1: seeking indemnification is blameless, but is held derivatively or vicariously
• 47:28
  Speaker 1: liable for the wrongful act of another. But plaintiff's claims
• 47:32
  Speaker 1: against Heal are based on Heal's own physical interactions with
• 47:36
  Speaker 1: Birchmore and not Farwell's. Thus, Heal has no right to
• 47:39
  Speaker 1: be identified by W. Farwell as a matter of law.
• 47:43
  Speaker 1: See Decker v. Black and Decker Manufacturing Company, 389 Mass 3541, 1983.
• 47:50
  Speaker 1: The court takes no action on defendant Heal's motion to
• 47:53
  Speaker 1: sever claims and his motion for separate trial as his
• 47:56
  Speaker 1: decision and order, which dismisses all the plaintiff's claims against Heal,
• 48:01
  Speaker 1: renders those motions moot order. For the foregoing reasons, defendant
• 48:05
  Speaker 1: Joshua Hill's motion to dismiss is allowed as to all
• 48:08
  Speaker 1: counts of plaintiff's amended complaint. Defendant William Farwell's motion to
• 48:13
  Speaker 1: dismiss is allowed as to count seven of plaintiff's amended
• 48:17
  Speaker 1: complaint and as to Hill's cross claims for identification and contribution. W.
• 48:23
  Speaker 1: Farwell's motion to dismiss is denied as to all remaining
• 48:27
  Speaker 1: counts of the amended complaint. Defendant Robert Levine's motions to dismiss...
• 48:32
  Speaker 1: is allowed as to the count seven of plaintiff's amended complaint.
• 48:36
  Speaker 1: His motion to dismiss is denied as to all remaining
• 48:39
  Speaker 1: counts of the amended complaint. Defendant Town of Stoughton's motion
• 48:43
  Speaker 1: to dismiss is allowed as to count seven and count
• 48:47
  Speaker 1: six of plaintiff's amended complaint. The town's motion to dismiss
• 48:51
  Speaker 1: is denied as to the remaining counts of the amended complaint.
• 48:55
  Speaker 1: As allowed sui sponte by the court, count seven also
• 48:59
  Speaker 1: will be dismissed as to defendant All right, so that
• 49:08
  Speaker 1: document has set the table for us as we move
• 49:10
  Speaker 1: forward talking about what happened to Sandra Birchmore, because I
• 49:14
  Speaker 1: think it's pretty relevant considering what's going on with Karen
• 49:17
  Speaker 1: Reed and how bad that investigation was. So I think
• 49:21
  Speaker 1: this is one of those stories that's on its way
• 49:23
  Speaker 1: to blowing up. And rightfully so. Because if these allegations
• 49:27
  Speaker 1: are true against these officers, and it looks like the
• 49:30
  Speaker 1: Internal Affairs Report is backing these allegations up, then all
• 49:35
  Speaker 1: of them need to be imprisoned. And anyone that was
• 49:38
  Speaker 1: involved in the investigation that might have helped them, well,
• 49:41
  Speaker 1: you know, they belong in prison too. So we're going
• 49:44
  Speaker 1: to continue to follow along with this one. And now
• 49:47
  Speaker 1: that we have the context about what's going on, we're
• 49:49
  Speaker 1: going to dive into some articles to add even more
• 49:52
  Speaker 1: context and some more meat to the bone. But that's
• 49:55
  Speaker 1: going to do it for this one. All of the
• 49:57
  Speaker 1: information that goes with this episode can be found in
• 50:01
  Speaker 1: the description box.