Full text
86603336v.2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
TYLER ADAMS, et al.,
Plaintiffs,
v.
MASS GENERAL BRIGHAM
INCORPORATED,
Defendant.
Civil Action No. 1:21-cv-11686-FDS
DEFENDANT MASS GENERAL BRIGHAM’S MOTION TO DISMISS
CLAIMS OF PLAINTIFF JAMES WINES WITH PREJUDICE
AND INCORPORATED MEMORANDUM
On August 23, 2022, this Court ordered Plaintiff James Wines (“Wines”), who is now pro
se after separating from two successive sets of attorneys (see Dkt. 87, 103), to answer his
outstanding responses to Questionnaire question numbers 8, 14, and 16 by Friday, September 2,
2022. Dkt. 115. At the August 23 status conference, this Court further indicated that Defendant
Mass General Brigham Incorporated (“MGB”) could move to dismiss Wines’s claims with
prejudice should he fail to comply. On September 2, Wines did not provide any questionnaire
responses, and to date he has refused to do so, flouting this Court’s Order.1 Accordingly, per Fed.
R. Civ. P. 37(b)(2), MGB moves to dismiss Wines’s claims, in their entirety, with prejudice.
1 Though the Court was crystal clear, both verbally on the record, and on the docket, that the Questionnaire responses
were due September 2, Plaintiff Wines claimed at the September 6 status conference that he somehow thought they
were due September 6. Tellingly, he did not provide them by September 6 either and still has not done so.
Case 1:21-cv-11686-FDS Document 119 Filed 09/08/22 Page 1 of 7
2
86603336v.2
BACKGROUND
To date, Wines has refused to provide essential discovery information supplied by the other
160+ plaintiffs who remain in this case, including the other pro se Plaintiff. Specifically, Wines
refuses to provide an answer to the following three questionnaire questions:
8.
Please identify any communications you had with MGB employees or any other persons
— other than e-mails to or from MGBReligiousExemptions@Partners.org or
PHSOHSCovid19@partners.org — about your exemption request(s) by providing: (a) the
person with whom you communicated, (b) the date of the communication, (c) the form of
the communication (e.g., email, phone call, oral conversation), and(d) the substance of the
communication. Use the space below for your answer. Attach a copy of any documents
that constitute, reflect, or relate to any communications identified in your answers.
14.
If you indicated above that you sought a medical exemption, please provide information
about any medical conditions for which you claim to have requested an exemption under
the Vaccination Policy by filling out the chart below.
16.
Do you contend that any of the medical condition(s) for which you have sought an
exemption substantially limits a major life activity (e.g., seeing, hearing, walking, lifting,
speaking)? If yes, please explain using the space below. Attach a copy of any documents
that support your contentions.
The Court expressly approved all three questions when it approved MGB’s Questionnaire.
(Dkt. 71, 72). Wines’s responses to the Questionnaire were due on April 20, 2022, more than four
months ago. The Court has also ordered that pro se Plaintiffs “must answer in full the
Questionnaire.” and dismissed with prejudice those pro se Plaintiffs who failed to do so. (Dkt. 94)
(emphasis original). Rather than answer them, Plaintiff Wines filed a baseless motion for
protective order — which this Court denied at the August 23 status conference. (Dkt. 115). At
that same status conference, this Court further ordered Wines to provide his answers to the
foregoing questionnaire responses by September 2, 2022. (Id.). Despite that this Court had denied
his meritless Motion for Protective Order on August 23, 2022, Wines improperly refused to answer
questions about his alleged medical condition at his deposition the next day. Wines has refused to
comply with the Court’s Orders, and consequently he stands in flagrant violation of at least two
Case 1:21-cv-11686-FDS Document 119 Filed 09/08/22 Page 2 of 7
3
86603336v.2
orders of this Court compelling him to provide discovery related to his claims under Title VII and
the ADA.2
ARGUMENT
“District courts’ authority to dismiss an action as a sanction for noncompliance with a
discovery order is well established.” Vallejo v. Santini-Padilla, 607 F.3d 1, 7 (1st Cir. 2010).
“Although dismissal of a case may at times be a harsh sanction, we have routinely recognized that
it is an essential tool for district courts’ effective exercise of their ‘right to establish orderly
processes and manage their own affairs.’” Id. (quoting Young v. Gordon, 330 F.3d 76, 81 (1st Cir.
2003)). Disobedience of court orders concerning discovery in and of itself constitutes “extreme
misconduct” that “warrants dismissal[.]” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43,
46 (1st Cir. 2002). Moreover, “[w]here, as here, the court appropriately forewarns a plaintiff of
the consequences of future noncompliance with an unambiguous order, the court need not exhaust
less toxic sanctions before dismissing a case with prejudice.” Torres-Vargas v. Pereira, 431 F.3d
389, 393 (1st Cir. 2005).
A straightforward application of these principles demonstrates that dismissal of Wines’s
claims with prejudice is warranted. Despite the other 160+ Plaintiffs (including the other pro se
Plaintiff) complying with their duty to answer the court-approved questionnaire, Wines continues
2 At the last two status conferences, Wines has made incoherent statements alleging that MGB somehow violated his
“informed consent” about his vaccination status. He is wrong. MGB did not access Wines’s medical records.
Employees who were vaccinated at an MGB facility were given an option to have the record of their vaccine (and no
other medical information) sent to MGB Human Resources, to save the employee the administrative step. This was
irrelevant to Wines, who refused to get vaccinated, and claimed both a religious and a medical exemption. MGB
maintained Human Resources records reflecting which employees had, or had not, received certain vaccinations
relevant to their employment, such as COVID and flu vaccinations that were conditions of employment, absent an
approved exemption. MGB discussed employees’ non-compliance with the Vaccination Policy as needed to
implement the policy. In any event, this issue is a red herring that has nothing to do with Wines’s refusal to abide by
Court orders.
Case 1:21-cv-11686-FDS Document 119 Filed 09/08/22 Page 3 of 7
4
86603336v.2
to refuse to answer simple questions about the most basic facts underlying his asserted claims, in
violation of a direct court order to do so.3
Simply put, MGB is entitled to discovery of Wines’s communications with third parties
concerning his religious and medical exemption requests (questionnaire item no. 8). He cannot
be permitted to pursue religious and disability discrimination claims while flouting Court orders
and refusing to provide MGB basic information about discussions he had about such requests --
including any discussions with MGB personnel. The Court ordered him to respond to this question
by September 2, 2022, and he failed to comply with that Order.
Likewise, questionnaire item nos. 14 and 16 seek basic information about Wines’s claim
under the ADA concerning his requested medical exemption — indeed, the information sought
therein is essential for Wines to establish a prima facie case of disability discrimination. His
refusal to provide it is unwarranted, prejudices MGB’s defense of his claims, and directly violates
this Court’s repeated discovery orders. As this Court recognized in its denial of Wines’s Motion
for Protective Order, Wines has put his medical condition and alleged disability status directly at
issue by bringing this lawsuit.4 The Court ordered him to respond to this question by September
2, 2022, and he also failed to comply with that Order.
Under the circumstances, this Court should dismiss Wines’s claims with prejudice. Torres-
Vargas, 431 F.3d at 393 (“Using dismissal as a sanction in such a case recognizes the court’s
strong interest in maintaining discipline and husbanding scarce judicial resources; after all, such a
3 Wines has also refused to sign the revised modified Protective Order Acknowledgment that this Court approved on
August 24, 2022. (Dkt. 116).
4 Wines’s religious exemption request form also relied heavily on medical allegations, including (false) claims that
the COVID-19 vaccine caused mass deaths and hospitalization, and a claim that he had had symptomatic COVID-19
that provided “robust long-lasting immunity” equal to or greater than vaccination. Thus, his medical condition is also
directly relevant to his purported religious exemption.
Case 1:21-cv-11686-FDS Document 119 Filed 09/08/22 Page 4 of 7
5
86603336v.2
sanction not only serves to punish the noncompliant litigant but also acts as a deterrent to those
who might be tempted to emulate a bad example.”).
It is unjust and prejudicial to MGB -- and to the 160+ other Plaintiffs who have complied
their obligations under the rules and this Court’s orders -- for Wines to be permitted to flout the
rules and Court Orders. MGB and Plaintiff’s counsel have been forced to waste tremendous
resources, for many months, chasing Wines for basic discovery. It is unfair to make the parties
continue to do so. He is merely one Plaintiff out of 160+ but is demanding outsized resources and
attention from the parties and the Court, and has shown no respect for the process, rules or Court.
He has had numerous chances to come into compliance with the rules and this Court’s Orders, and
his brazen continued refusal merits dismissal with prejudice.
CONCLUSION
For the foregoing reasons, MGB respectfully requests that this Court grant the within
motion and enter an order dismissing Wines’s claims with prejudice.
Case 1:21-cv-11686-FDS Document 119 Filed 09/08/22 Page 5 of 7
6
86603336v.2
Dated: September 8, 2022
MASS GENERAL BRIGHAM INCORPORATED
By Its Attorneys,
Respectfully Submitted,
/s/ Dawn R. Solowey
Lynn A. Kappelman (BBO# 642017)
Katherine E. Perrelli (BBO# 549820)
Kristin McGurn (BBO# 559687)
Dawn Reddy Solowey (BBO# 567757)
SEYFARTH SHAW LLP
Seaport East
Two Seaport Lane, Suite 1200
Boston, MA 02210-2028
kperrelli@seyfarth.com
lkappelman@seyfarth.com
kmcgurn@seyfarth.com
dsolowey@seyfarth.com
TEL: (617) 946-4800
FAX: (617) 946-4801
LOCAL RULE 7.1(a)(2) CERTIFICATE
I hereby certify that, pursuant to Local Rule 7.1(A)(2), MGB’s counsel, Lynn Kappelman,
conferred with Plaintiff telephonically for approximately forty (40) minutes regarding the issues
raised in the instant motion in a good faith attempt to resolve or narrow the issues. The parties
were unable to resolve or narrow the issues.
/s/ Dawn R. Solowey
Dawn R. Solowey
Case 1:21-cv-11686-FDS Document 119 Filed 09/08/22 Page 6 of 7
7
86603336v.2
CERTIFICATE OF SERVICE
I, Dawn R. Solowey, certify that on September 8, 2022, I caused a true and accurate copy
of the foregoing document to be served upon Plaintiff via e-mail and first class mail postage pre-
paid and e-mail to the following address:
James D. Wines, Jr., M.D., M.P.H
51 Sea Ave.
Quincy, MA 02169
jamiewines@comcast.net
/s/ Dawn R. Solowey
Dawn R. Solowey
Case 1:21-cv-11686-FDS Document 119 Filed 09/08/22 Page 7 of 7