John Devaney v. St. Thomas More Catholic Church

December 9, 2022

                                                        Supreme Court
                                                        No. 2021-167-Appeal.
                                                        (WC 17-54)



               John Devaney              :

                    v.                   :

    St. Thomas More Catholic Church et :
                   al.




               NOTICE: This opinion is subject to formal revision
               before publication in the Rhode Island Reporter. Readers
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               Rhode Island 02903, at Telephone (401) 222-3258 or
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                                                         Supreme Court

                                                         No. 2021-167-Appeal.
                                                         (WC 17-54)


            John Devaney                 :

                   v.                    :

 St. Thomas More Catholic Church et :
                al.


      Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

                                   OPINION

      Justice Goldberg, for the Court. This case came before the Supreme Court

on October 27, 2022, pursuant to an order directing the parties to appear and show

cause why the issues raised in this appeal should not be summarily decided. The pro

se plaintiff, John Devaney (plaintiff), appeals from a Superior Court judgment in

favor of the defendants, St. Thomas More Catholic Church (St. Thomas More), St.

Peter’s By-the-Sea Episcopal Church (St. Peter’s), and the Roman Catholic Bishop

of Providence (defendants), following the dismissal of the matter in accordance with

Rule 37 of the Superior Court Rules of Civil Procedure. After considering the

parties’ written and oral submissions and reviewing the record, we are satisfied that

cause has not been shown and that this case may be decided without further briefing




                                             -1-
or argument. For the reasons stated herein, we affirm the judgment of the Superior

Court.

                                  Facts and Travel

         Litigation regarding the underlying issues in this case commenced almost ten

years ago; taking a toll on all parties involved. See Devaney v. Kilmartin, 

 (D.R.I. 2015). In July 1995 plaintiff purchased his home at 56 Rockland

Street in the Narragansett Pier neighborhood of Narragansett (the town). St. Thomas

More is located at 53 Rockland Street, while St. Peter’s is located at 72 Central

Street. Both churches are located in the town’s Pier neighborhood.

         Beginning in 1999, St. Peter’s began to operate an electronically generated

and amplified bell-ringing system that had recently been donated to the parish. The

plaintiff began to hear an electronically amplified bell-ringing system from the bell

tower of St. Thomas More sometime thereafter. He contends that the excessive noise

emanating from defendants’ bell towers is a serious hazard to his health and welfare

and unnecessarily degrades his quality of life. He further alleges that the ringing of

the bells has resulted in a diminution of the value of his property, impeded its free

use, and led to the breakup of his family, causing him to suffer mental anguish. The

plaintiff first attempted to litigate this matter in 2013, when he filed suit against

defendants in the United States District Court for the District of Rhode Island. See




                                           -2-
Devaney, 

. The federal court dismissed that suit in 2015 and

declined to exercise jurisdiction over plaintiff’s claims under state law. 

.

      On February 7, 2017, plaintiff filed the case at bar in Washington County

Superior Court, seeking to enjoin defendants from operating their respective bell

systems, alleging a claim of nuisance, and seeking more than $3 million in damages.1

The crux of the issue on appeal concerns plaintiff’s answers to interrogatories,

specifically his response to interrogatory number six, which required him to identify

any expert witnesses he expected to call at trial, as well as the substance of the facts

and opinions that each expert was expected to provide.

      The plaintiff was first served a set of interrogatories, including the expert-

witness inquiry, on June 7, 2017. The plaintiff responded on August 12, 2017,

objecting to most of the questions, including the expert-witness interrogatory, stating

that the information requested had not been fully developed at that time. Thirteen

months later, on September 25, 2018, the trial court granted a motion to compel more

responsive answers to the interrogatory. The plaintiff responded on December 12,

2018, and provided a list of twelve people identified as proposed experts and three

additional non-specified experts to testify as to various elements of his claims.2


1
  The plaintiff’s complaint also included a claim seeking a declaratory judgment that
the exemption from the Town of Narragansett noise ordinance for places of worship
“be deemed ineffective.”
2
   The plaintiff’s December 12, 2018 list of experts included eleven named
individuals and “Narragansett Fire Department Rescue Squad Personnel.”
                                           -3-
      In an order dated February 1, 2019, the trial court denied plaintiff’s request

for the court to appoint expert witnesses and ordered plaintiff to disclose by April 5,

2019, all experts he expected to testify at trial, the subject matter of the expected

testimony, and the substance of the expected facts and opinions, together with a

summary of the grounds for each opinion. The plaintiff responded on April 5, 2019,

identifying three additional individuals he expected to call as experts, including

Bertram Gibbes, Ph.D. (Dr. Gibbes), who was to attest to the effect on plaintiff’s

well-being resulting from the noise generated by the ringing bells.

      On August 23, 2019, the trial court entered a conditional order of dismissal,

in accordance with Rule 37, ordering plaintiff to provide full and complete

interrogatory answers for his experts Edward A. Caswell, Jr. (Caswell) and Dr.

Gibbes by September 25, 2019. The order further stated that if plaintiff failed to

comply by that date, the conditional order of dismissal would become final only

upon further motion and hearing. On September 24, 2019, plaintiff submitted his

final supplemental interrogatory response. In his answer, plaintiff removed Caswell

from his witness list, and he then proceeded to identify Dr. Gibbes as his only expert

witness and set forth the subject matter, substance, and grounds for Dr. Gibbes’s

testimony.

      At a hearing on November 20, 2019, plaintiff informed the trial court that Dr.

Gibbes would be his only expert witness testifying at trial. Counsel for defendant


                                           -4-
St. Thomas More asserted that plaintiff’s interrogatory responses were deficient.

The role that Dr. Gibbes played in drafting the response also was questioned, as

counsel believed there were statements in the supplemental response that no expert

would proffer. Counsel for St. Thomas More suggested that he be allowed to

subpoena Dr. Gibbes’s records and to take his deposition.

      During a status conference, counsel for St. Peter’s indicated that she had

received some of the records requested from Dr. Gibbes by way of subpoena, but

that she intended to depose Dr. Gibbes, while continuing her deposition of plaintiff.

      Soon thereafter, defendants filed a joint motion seeking to preclude plaintiff’s

expert witnesses and requesting a dismissal pursuant to Rule 37. The defendants

asserted that plaintiff had failed, once again, to provide timely and sufficient answers

to defendants’ expert interrogatory. Highlighting plaintiff’s deposition testimony,

defendants argued that plaintiff did not comply “with the spirit or substance” of the

court’s discovery orders.

      During his deposition, plaintiff admitted that Dr. Gibbes did not read the

responses before they were served on defendants. He further stated that he did not

know if the answers contained in the supplemental expert interrogatory response

were a complete and accurate opinion of the purported witness. The plaintiff

testified that the draft report prepared by Dr. Gibbes contained opinions that were




                                           -5-
not included in the interrogatory answer. The plaintiff further added that he had

included “things that [he] [saw] on [his] own” in the supplemental response.

       Due to the Covid-19 pandemic, a hearing on the motion to dismiss was not

held until September 23, 2020. The defendants reiterated their contention that

plaintiff had failed to comply with discovery orders, repeatedly highlighting the fact

that the court had issued four orders to compel disclosure of expert witnesses. The

defendants asserted that they did not know whether the expert interrogatory answer

was complete, or rang true, because Dr. Gibbes never reviewed or adopted the

response. The defendants argued that the case should be dismissed as a result of

plaintiff’s actions.

       The plaintiff stated that his answer to the expert interrogatory question was

complete. He also argued that he complied with the trial court’s orders because he

responded to the interrogatory with the responses that he “expected” his expert to

give and that there was no guarantee that Dr. Gibbes would testify to what plaintiff

anticipated in the response. The trial justice reserved decision.

       The trial justice subsequently issued a written decision granting defendants’

motion to dismiss pursuant to Rule 37(b). The trial justice held that because plaintiff

admitted to supplementing the expert interrogatory answers with matters that he had

personally observed, while also admitting that he did not know if the answers he

provided were a complete and accurate opinion of Dr. Gibbes’s expected testimony,


                                          -6-
dismissal was warranted. The trial justice concluded that Rule 26(b)(4)(A) of the

Superior Court Rules of Civil Procedure did not permit plaintiff to speculate on the

expected testimony of an expected witness because it would impede defendants’ trial

preparations. The trial justice found that plaintiff was aware that he was to comply

with the expert discovery disclosure orders and was given numerous warnings but

continued to resist despite these opportunities.       Accordingly, the trial justice

dismissed plaintiff’s complaint due to his continued failure to comply with Rule 26.

      Yet another hearing was held on October 28, 2020, in order for plaintiff to

contest the dismissal. The trial justice overruled plaintiff’s objection and entered an

order consistent with his written decision. Final judgment was entered on October

28, 2020, and plaintiff timely appealed.

      On appeal, plaintiff assigns a series of errors to the trial justice’s decision. He

contends that the trial justice failed to accord meaning and effect to the words

“expect” and “expected” under Rule 26; that the trial justice failed to analyze his

interrogatory answers; and that the subpoenaed material from his expert witness

should have been considered part of his response. He also contends that defendants’

Rule 37 dismissal motion was lacking in necessary form and substance and that the

trial justice failed to evaluate for himself plaintiff’s “Supplemental Interrogatory

Response.”




                                           -7-
                                Standard of Review

      This Court reviews a trial “justice’s decision to impose a sanction pursuant to

Rule 37 for noncompliance with a discovery rule or order for abuse of discretion.”

EdgengG (Private), Ltd. v. Fiberglass Fabricators, Inc., 

, 600 (R.I.

2022). “We will find an abuse of discretion only when a motion justice has

dismissed an action in the absence of evidence demonstrating persistent

refusal, defiance or bad faith.” Joachim v. Straight Line Productions, LLC, 

 (R.I. 2016) (emphasis omitted) (quoting Flanagan v. Blair, 

 (R.I. 2005)).

                                        Analysis

      Rule 37(b)(2) permits a justice of the Superior Court to impose a variety of

sanctions “on a party who has failed to comply with an order to provide discovery *

* * [including] an order directing the entry of final judgment.” Flanagan, 

 (footnote omitted). The decision to impose sanctions, including entry of

final judgment, is left to “the sound discretion of the motion justice.” 

 We will

“reverse a trial justice’s decision to impose sanctions for Rule 37 violations only

when we find that he or she has abused his or her discretion.” Zaino v. Zaino, 

 (R.I. 2003) (quoting Lembo v. Lembo, 

 (R.I. 1996)).

Our careful review of the record in the case satisfies this Court that the trial justice

did not abuse his discretion in dismissing the case at bar due to plaintiff’s


                                           -8-
noncompliance with multiple discovery orders, specifically regarding his responses

to the expert-witness interrogatory.

      “To be deemed to have failed to serve a written response, a party need not fail

to respond entirely; instead, ‘an evasive or incomplete answer or response is to be

treated as a failure to answer or respond.’” Joachim, 

 (quoting

Aguayo v. D’Amico, 

 (R.I. 2009)). In the case at bar, plaintiff

repeatedly failed to provide a full and complete answer to the expert-witness

interrogatory. These answers included an objection to the interrogatory, a list of

proposed experts without confirmation that they all had agreed to testify, and scant

information as to their opinions.

      After plaintiff submitted his final supplemental interrogatory response, he

acknowledged that the answers ascribed to the only remaining expert witness were

crafted without the expert’s approval or review. Further, plaintiff was unable to state

whether the response represented a clear and accurate disclosure of the expert’s

expected opinion. The evasive actions by plaintiff regarding the expert-witness

interrogatory and subsequent answer attributed to his expert without the expert’s

input supports the trial justice’s decision.3


3
  We pause to note that, if plaintiff was a licensed attorney, sanctions would be in
order. See Lisi v. Resmini, 

 (R.I. 1992) (attorney suspended
from practicing law for submitting answers to supplemental interrogatories and
signing client’s name without client’s review).

                                            -9-
      Thus, “[d]espite the severity of a final judgment dismissing the action, this

[C]ourt will affirm a trial justice’s use of this type of drastic sanction in the face of

a party’s persistent failure to comply with discovery obligations.” Mumford v.

Lewiss, 

 (R.I. 1996). We are of the opinion that this failure to

provide a complete discovery response after repeated orders and admonitions by the

trial court warranted dismissal in accordance with Rule 37.4

      Finally, the plaintiff presents a series of contentions that dismissal in

accordance with Rule 37 was improper. However, because none of these arguments

have been substantially developed, we decline to address them.

                                      Conclusion

      For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The papers in this case may be remanded to the Superior Court.




4
  In a dignified appearance before this Court at oral argument, plaintiff raised his
status as a pro se litigant as justification for his deficiencies. The unfailing patience
of two Superior Court justices satisfies us that his pro se status was generously
accommodated.
                                           - 10 -
                                              STATE OF RHODE ISLAND
                                         SUPREME COURT – CLERK’S OFFICE
                                               Licht Judicial Complex
                                                 250 Benefit Street
                                               Providence, RI 02903


                                     OPINION COVER SHEET

                                         John Devaney v. St. Thomas More Catholic Church et
Title of Case
                                         al.
                                         No. 2021-167-Appeal.
Case Number
                                         (WC 17-54)

Date Opinion Filed                       December 9, 2022

                                         Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
                                         Long, JJ.

Written By                               Associate Justice Maureen McKenna Goldberg


Source of Appeal                          Newport County Superior Court


Judicial Officer from Lower Court        Associate Justice William E. Carnes, Jr.

                                         For Plaintiff:

                                         John Devaney, Pro Se
Attorney(s) on Appeal                    For Defendants:

                                         Amanda Prosek, Esq.
                                         Robert K. Taylor, Esq.




SU-CMS-02A (revised November 2022)