Maridel Allen, individually and on behalf of statutory beneficiaries, Frank Edward Allen and John M. Allen, III v. South County Hospital, et al.

Supreme Court
No. 2006-6-Appeal.
(WC 01-445)
NOTICE: 	This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Maridel Allen, individually and on behalf of
statutory beneficiaries, Frank Edward Allen
and John M. Allen, III
:
v. 	:
South County Hospital et al. 	:

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Supreme Court
No. 2006-6-Appeal.
(WC 01-445)
Present: Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. 	The plaintiff in this medical negligence and wrongful
death action was left high and dry when her primary expert witness abandoned her litigious ship
just seven weeks before the scheduled trial date. Unable to secure a new expert witness before
the case was reached for trial, the plaintiff moved to continue the trial date on three occasions.
The trial justice rebuffed each of her efforts to forestall the commencement of trial and, further,
when the plaintiff represented that she was unable to proceed on the scheduled trial date, the trial
justice dismissed her action for lack of prosecution under Rule 41(b)(1) of the Superior Court
Rules of Civil Procedure.
Later that very day plaintiff was contacted by another potential expert witness with whom
she previously had consulted and who indicated he would be willing to testify on her behalf. She
then filed a motion to vacate judgment under Rule 60(b)(6) of the Superior Court Rules of Civil
Procedure, which motion was granted subject, however, to certain conditions. 	One such
condition was that she post a corporate surety bond for $60,000 to secure payment of defendants’
reasonable costs and attorneys’ fees that were (1) related to her postjudgment motion to vacate;
(2) incurred in the researching, investigating and analyzing the opinions of the new expert
Maridel Allen, individually and on behalf of
statutory beneficiaries, Frank Edward Allen
and John M. Allen, III
:
v. 	:
South County Hospital et al. 	:

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witness, as well as in deposing him; and (3) incurred with respect to trial preparation. 	The
plaintiff appealed from the original judgment of dismissal and from the conditions that were
attached to the granting of her motion to vacate. The defendants also have cross-appealed from
the granting of plaintiff’s motion to vacate. On January 24, 2006, this Court stayed all Superior
Court proceedings.
On September 20, 2007, however, this Court, sitting in conference, determined that the
appeals were not properly before the Court. 	We vacated the stay and remanded the case to the
Superior Court with instructions that if plaintiff complied with the conditions imposed by the
order granting her motion to vacate, the case would remain in the Superior Court for further
proceedings. 	If, on the other hand, plaintiff did not comply with the conditions, the original
judgment would be reinstated, and the case returned to this Court for consideration of the issues
raised in the appeals. 	On remand, plaintiff represented that she was unable to post the $60,000
bond. 	Thus, the motion to vacate was deemed denied, and the case returned to the Supreme
Court, where it was placed on the show-cause calendar for oral argument. After considering the
oral and written submissions of the parties and reviewing the record, we reverse the denial of
plaintiff’s motion to vacate and modify the conditions imposed by the trial justice.
I
Facts and Procedural History
The plaintiff, Maridel Allen, individually and on behalf of other statutory beneficiaries,
Frank Edward Allen and John M. Allen, III, filed a complaint on August 23, 2001, alleging that
negligent medical care in connection with an intubation procedure resulted in the death of their
mother, Helen Jean Allen, on August 24, 1998. 	Named as defendants were South County
Hospital, James P. McCormick, M.D., a pulmonologist, and James F. Griffin, D.O., an

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anesthesiologist. After the parties engaged in extensive discovery, the case first was assigned to
a “date certain” trial date on January 24, 2005. 	Difficulties with respect to scheduling a
deposition of one of plaintiff’s expert witnesses in Delaware led to a continuance of the trial date
to May 16, 2005.
On May 8, 2005, plaintiff filed a motion for a continuance of the trial date because her
primary expert witness, Aaron B. Waxman, M.D., was unavailable to testify during the week of
May 16, 2005. A hearing justice denied the motion and plaintiff then made a request for a stay
so she could file a petition for writ of certiorari in this Court. 	The next day, however, the trial
justice contacted all parties and stated that after further consideration he would grant plaintiff’s
motion for continuance. After much discussion concerning various scheduling conflicts, the trial
justice rescheduled the trial for November 28, 2005, and he scheduled on the calendar a status
conference for October 6, 2005.
The plaintiff notified her expert witnesses of the new trial date. 	After the status
conference on October 6, 2005, at 8:51 p.m., plaintiff’s counsel received an e-mail from Dr.
Waxman indicating not only that he was unavailable to testify on the assigned trial date, but also
that he was unwilling to continue to serve as an expert witness. 	The plaintiff’s counsel later
represented to the court that over the next three weeks he made “diligent efforts” to contact Dr.
Waxman by telephone, letter, and e-mail in an attempt to address Dr. Waxman’s concerns about
acting as an expert witness in this case.
On October 27, 2005, plaintiff filed a motion to vacate the trial date and for a
continuance. 	The trial justice,1 after considering the procedural history of the case, plaintiff’s
efforts to secure a new expert witness, and defendants’ interests, denied the motion on November
1 The trial justice who presided on and after October 6, 2005 was not the original trial justice,
apparently because of the normal rotation of Superior Court justices in Washington County.

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4, 2005. 	According to an affidavit of plaintiff’s counsel, on or about November 7, 2005, he
attempted to find a new expert witness by contacting National Medical Consultants, P.C. 	In
furtherance of this effort, plaintiff’s medical records and a retainer check were forwarded to a
potential new expert witness, Dr. Paul Mayo. 	The plaintiff thereafter renewed her motions to
vacate the trial date and for a continuance, which were heard and denied on November 23, 2005.
When this case was reached for trial on the morning of November 28, 2005, plaintiff
again moved for a continuance, this time asserting that she had been in contact with Dr. Mayo,
and that he was expected to inform her later that day whether he would be willing to testify on
her behalf. 	The trial justice denied the motion for a continuance because it was uncertain
whether Dr. Mayo would be able to testify in the case, and the trial justice would not “permit that
kind of speculation to be the basis for a motion for a continuance.” 	Furthermore, because
plaintiff indicated she was not ready to proceed without an expert witness, the trial justice
dismissed the case for lack of prosecution under Rule 41(b)(1). 	A judgment was entered
dismissing plaintiff’s allegations with prejudice on December 2, 2005, and plaintiff appealed that
dismissal on December 21, 2005.
In the meantime, at approximately 3:45 p.m. on November 28, 2005, Dr. Mayo did advise
plaintiff that he was willing to testify as an expert witness on her behalf. On December 9, 2005,
plaintiff filed a motion to vacate the judgment of dismissal under Rule 60(b)(6). 	At the first
hearing on the motion, the trial justice declined to rule on the motion, but instead asked the
parties to submit an estimate of the anticipated expenses in light of a new expert opinion being
offered. After a second hearing on January 3, 2006, the trial justice granted plaintiff’s motion to
vacate upon several conditions. Specifically, plaintiff was to be responsible for the payment of
defendants’ reasonable costs and attorneys’ fees relating to the postjudgment motion to vacate

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and the opinions of Dr. Mayo, as well as any trial preparation costs if the case proceeded to trial.
Also, plaintiff was required to post and file a corporate surety bond of $60,000 ($20,000 for each
defendant), to secure payment for the defendants’ anticipated costs and fees. If plaintiff did not
meet the bond requirement by January 23, 2006, the motion to vacate would be deemed denied
and the judgment of dismissal would instead remain valid and final. Finally, the order stayed all
prejudgment interest in the case as of November 28, 2005.
The plaintiff appealed from the entry of the order granting her motion to vacate because
of the conditions placed on plaintiff in the order, and defendants cross-appealed. 	This Court
remanded the case to the Superior Court, however, stating that “an order granting a motion to
vacate is interlocutory and not appealable.” 	On remand, plaintiff represented to the Superior
Court that she did not have the financial means to comply with the conditions imposed by the
order, and in particular the requirement that she post a $60,000 bond. 	An order was entered
denying the motion to vacate and reinstating the judgment in favor of defendants. 	On appeal,
plaintiff argues the trial justice abused his discretion by failing to grant her motion for a
continuance, by dismissing her complaint under Rule 41(b)(1), and by imposing overly
burdensome terms and conditions upon the grant of her motion to vacate judgment. 	The
defendants cross-appealed, arguing that the trial justice abused his discretion by granting
plaintiff’s motion to vacate judgment. In the alternative, they argue that the trial justice did not
abuse his discretion by imposing just and equitable terms and conditions.

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II
Discussion
A. Conditional Motion to Vacate
We begin our discussion with plaintiff’s challenge to the terms and conditions upon
which the trial justice conditioned the grant of her motion to vacate judgment, terms and
conditions that she characterizes as unfair and unduly burdensome. 	She particularly objects to
the requirement that she post a bond of $60,000, which she argues constitutes a “financially
insurmountable barrier.” 	She further contends that the trial justice abused his discretion by
requiring her to be responsible for defendants’ reasonable costs and attorneys’ fees in connection
with the motion to vacate and in addressing the opinion of her new medical expert witness, as
well as the costs defendants would incur with respect to trial preparation.
Rule 60(b) provides in part: “On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a final judgment, order, or proceeding * * *
[for] (6) any other reason justifying relief from the operation of the judgment.” On appeal, this
Court employs an abuse of discretion standard in reviewing the ruling of a trial justice. “A Rule
60(b) motion to vacate is addressed to the trial justice’s sound judicial discretion and ‘will not be
disturbed on appeal, absent a showing of abuse of discretion.’” Keystone Elevator Co. v. Johnson
& Wales University, 850 A.2d 912, 916 (R.I. 2004) (quoting Crystal Restaurant Management
Corp. v. Calcagni, 732 A.2d 706, 710 (R.I. 1999)).
Our Rule 60(b) is nearly identical to Rule 60(b) of the Federal Rules of Civil Procedure,
and, as a result, we find federal cases interpreting this rule to be instructive. See Hall v.
Insurance Co. of North America, 727 A.2d 667, 669 (R.I. 1999) (“[F]ederal-court interpretations
of a procedural rule that is substantially similar to one of our own state rules of civil procedure

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should serve as a guide to the construction of our own rule.”). In Diehl v. H.J. Heinz Co., 901
F.2d 73, 74 (7th Cir. 1990), an order was entered dismissing the suit as a sanction for the
plaintiff’s failure to cooperate in discovery. The plaintiff filed a motion to vacate the order and
the trial judge granted the motion on the condition that the plaintiff agree to “comply with all
outstanding discovery requests by close of business this date,” which essentially required the
plaintiff’s attorney to obtain his client’s signature on a document and return the document to the
court by the end of the day. Id. 	The plaintiff’s attorney agreed to the condition although
satisfying it would be impossible because of the distance between the courthouse, the lawyer’s
office, and the client’s residence. Id. The plaintiff’s attorney did not meet the condition for the
motion to vacate to be granted and, as a result, the defendant’s counsel filed a renewed motion to
dismiss, which the trial judge granted. Id.
The Seventh Circuit stated that the condition was “unreasonable, because [the condition]
could not be complied with.” Diehl, 901 F.2d at 75. 	As a result, the court concluded that the
conditional motion to vacate was “irrational” and likewise the eventual dismissal of the suit was
predetermined by a condition placed on the motion to vacate. Id. The court acknowledged that
the trial judge likely “failed to realize that compliance would be, in fact, impossible” given the
circumstances. Id. 	The Seventh Circuit granted the plaintiff a “fresh start” by reversing the
dismissal of the suit. Id. at 75-76.
In Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C. Cir. 1966), the trial judge conditioned a
motion to vacate on the defendant’s placing the maximum amount that the plaintiff demanded in
her complaint, nearly double the amount entered by the default judgment, in a joint bank
account. As a result, the plaintiff was placed in a substantially better position than she was at the
outset of the litigation. Id. at 695. 	The court commented that when conditions are placed on

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motions to vacate, “[t]he condition most commonly imposed is that the [party in default]
reimburse the [opposing party] for costs—typically court costs and attorney’s fees—incurred
because of the default.” Id. at 694. The court stated that “[w]hen such an extraordinary condition
is approved it must be accompanied by supporting findings to show that it represents a
reasonable exercise of discretion.” Id. at 695. 	The court also stated that if a trial judge
“concludes, with supporting findings, that an unusual condition is called for, he should also
consider whether one less onerous than that originally imposed may not be more appropriate.”
Id. 	Furthermore, the court stated that if the defendant’s claim that he “simply is unable to
comply with the condition imposed is true, serious questions are raised, questions having an aura
of 	denial 	of 	due 	process 	of 	law.” 	Id. 	(citing 	Societe 	Internationale 	Pour 	Participations
Industrielles 	et 	Commerciales, 	S.A. 	v. 	Rogers, 	357 	U.S. 	197, 	209-10 	(1958) 	(Societe
Internationale)).
In the instant case, it is evident from a review of the transcripts of the two hearings on
December 15, 2005 and January 3, 2006,2 that the trial justice gave a great deal of thought and
consideration to the question of, as he phrased it, “how to deal in an equitable and just way with
the fact that none of the [parties] sitting here today brought about the circumstance that
ultimately led to the dismissal of this case.” Rather, the situation that confronted the court “was
precipitated by an unanticipated decision of a trial expert to abandon the plaintiff’s claim after
some four or more years of reliance by the plaintiff on the opinions articulated by that expert
which form the basis for the claim itself * * *.”
2 None of the parties formally submitted a transcript of the hearing on January 3, 2006. A copy,
however, was attached to plaintiff’s memorandum of law to support her motion for stay of order
pending appeal, which was filed in this Court on January 20, 2006.

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In granting the motion to vacate judgment the trial justice imposed several conditions,
three of which required plaintiff to assume responsibility for various costs and attorneys’ fees
defendants incurred. The relevant paragraph of the order reads as follows:
“1. 	Plaintiff shall be responsible to each Defendant for
payment of the following costs and attorneys’ fees incurred:
“a. 	All reasonable costs and attorneys’ fees related to
Plaintiff’s 	post-Judgment 	Motion 	to 	Vacate,
including 	but 	not 	limited 	to 	reviewing 	and
researching all materials submitted by Plaintiff in
support of her motion, researching and preparing
any responses to that motion and attending any and
all hearings regarding that motion;
“b. All reasonable costs and attorneys’ fees incurred in
addressing the disclosure(s) and opinions of Dr.
Mayo, including but not limited to researching,
investigating 	and 	analyzing 	the 	opinions 	and
background 	of 	Dr. 	Mayo, 	including 	medical
literature research, deposing Dr. Mayo and having
defense experts research, analyze and/or respond to
the opinions of Dr. Mayo; and
“c. 	All reasonable costs and attorneys’ fees incurred
with respect to trial preparation, should this matter
proceed to a trial on its merits.”
We need not linger over the first two conditions, paragraphs 1 (a) and (b), for it is clear to
us that plaintiff has waived any objection to them. When asked by the trial justice on December
15, 2005, “What would you consider to be terms that would be just if I were to do what you’re
asking me to do?”, plaintiff’s counsel responded, “Your Honor, whatever you feel is just is – if
you feel that we have to reimburse the defendants for the cost of their experts, reviewing a
deposition transcript and formulating new opinions and submitting updated responses to an
expert interrogatory, I don’t have a problem with that.” 	Shortly thereafter, the following
exchange took place:
“[THE COURT]: But, what I’m thinking about is in the nature of
putting the defendants in a position, financially, at least, where
they would be, had it not been for the turn of events resulting in

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both the motions for continuance and the motions for entry of
judgment and entry of judgment in this motion, and whatever
might occur subsequent to this motion, if I were to grant it. 	So, I
am thinking in terms of attorney’s fees, costs, expert witness fees
on their part, whatever travel expenses or other costs are associated
with getting this case back to trial, and I would want to hear from
the defendants as to any other costs that they feel would put them
back in a position of being in the position they were at before we
embarked on this journey.
“[PLAINTIFF’S COUNSEL]: 	I don’t have a problem with that,
Your Honor.”
At the hearing on January 3, 2006, plaintiff’s counsel took issue with the extent of the
additional costs that defendants had indicated were anticipated if the judgment were to be
vacated. 	Nevertheless, plaintiff’s counsel agreed with the trial justice that defendants’ experts
would have to review Dr. Mayo’s responses to interrogatories or deposition transcripts, stating:
“I don’t think it would be unreasonable for the Court to make that part of the order as far as the
costs to be paid.” 	In light of these representations by counsel, we believe plaintiff has waived
any objection to reimbursing defendants for their reasonable costs and attorneys’ fees related to
the motion to vacate and to addressing the disclosure(s) and opinions of Dr. Mayo.
We are of the opinion, however, that paragraph 1(c) of the order requiring plaintiff to be
responsible to defendants for “[a]ll reasonable costs and attorneys’ fees incurred with respect to
trial preparation” constitutes an abuse of discretion and must be stricken. Whatever the intention
of the trial justice may have been, the language of paragraph 1(c) is overly broad and open-
ended. The condition arguably encompasses a wide range of potential expenses totally unrelated
to plaintiff’s eleventh-hour replacement of her primary expert witness. It would be clearly unjust
to require plaintiff to subsidize defendants for trial preparation expenses, some of which they
undoubtedly would have incurred had the trial proceeded on November 28, 2005. 	We vacate,
therefore, paragraph 1(c) of the order.

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The condition that causes plaintiff the greatest consternation is paragraph 2 of the order
requiring that plaintiff post a corporate surety bond of $60,000, $20,000 for each defendant, or
see her motion to vacate judgment be denied. 	The plaintiff asserted both in the Superior Court
and in this Court, in conjunction with motions for a stay, that she lacks the financial means to
procure such a bond and, consequently, the requirement for all practical purposes deprives her of
a right to a trial on the merits. 	Indeed, after we remanded the case to the Superior Court, she
represented that she could not comply, and her motion to vacate was denied.
On appeal, plaintiff reiterates that the bond requirement “was unfair and unduly
burdensome” and “placed a substantial and inequitable burden upon [her] to raise significant
sums of money just to enable her to proceed with the trial on the merits.” She further contends
that she has “already invested significant time and expense in the preparation of her case,”
expenses which were significantly increased by the necessity of engaging a new expert witness.
We are satisfied that the imposition of the bond requirement amounted to an abuse of
discretion by the trial justice. 	After granting the motion to vacate, the trial justice noted that
under Rule 60(b) he could do so only “upon such terms as are just.” 	He then considered,
appropriately we believe, the additional burden and expense accruing to defendants thereby. He
said:
“[I]t seems to the Court that the rule gives to the Court ample
discretion in overriding the finality of a judgment in favor of
allowing a case to be determined on the merits to ensure as best as
possible that the defendants not pay the price for the extraordinary
circumstances 	which 	have 	formed 	the 	basis 	for 	the 	motion,
because, 	clearly, 	those 	extraordinary 	circumstances 	were 	not
caused by them or by their counsel. And they should not bear the
financial burden of the Court’s allowing the case to be reinstated.”

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He then estimated the anticipated costs to each defendant to be approximately $20,000
and ordered plaintiff to post a $60,000 bond as a condition of proceeding to a trial on the merits.3
He did not, however, at any time consider the financial wherewithal of plaintiff or her ability to
obtain such a surety bond. If she lacked the financial means, as she later asserted, the condition
was no condition at all; rather, it was an absolute bar and, in effect, a denial of her motion to
vacate. 	Access to our courts ought not depend upon pecuniary preconditions. See Societe
Internationale, 357 U.S. at 209 (in the context of a dismissal under Fed.R.Civ.P. 37 “there are
constitutional limitations upon the power of courts, even in aid of their own valid processes, to
dismiss an action without affording a party the opportunity for a hearing on the merits of his
cause”).
Although he said it was a close call, the trial justice granted plaintiff’s motion to vacate,
finding that plaintiff was placed in an untenable position when her expert witness “jump[ed]
ship” through no fault of her own or her counsel’s. He further found that “counsel did what had
to be done and what was necessary to try to secure * * * expert testimony” when faced with
“extraordinary, unique circumstances.” 	He also considered the additional expenses to which
defendants probably would be exposed, as a result of vacating the judgment of dismissal. He did
not, 	however, 	consider 	plaintiff’s 	ability 	to 	obtain 	a 	$60,000 	corporate 	surety 	bond 	as
prerequisite to proceeding to a trial on the merits. Thus, there are insufficient findings to enable
us to conclude that the bond requirement was a reasonable exercise of discretion. Lacking such
supportive findings, we are of the opinion that the trial justice abused his discretion by
conditioning the grant of the motion to vacate upon an obligation that proved impossible to
3 We note that in response to a question from the trial justice, plaintiff’s counsel indicated that he
estimated the total costs to be $25,000 to $30,000. 	This was merely an estimate, however, and
by no means a representation that his client could afford to obtain a bond for that amount.

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perform. 	Accordingly, we vacate paragraph 2 of the order, as well as paragraph 1(c), but we
affirm the order in all other respects.4
B. Defendants’ Cross-Appeals
The defendants cross-appeal from the granting of plaintiff’s motion to vacate judgment,
arguing that plaintiff failed to demonstrate any extraordinary, unique, or unusual circumstances
that would justify relief from the judgment of dismissal under Rule 60(b)(6). 	We agree with
defendants that Rule 60(b)(6) was “not intended to constitute a ‘catchall’ and * * * that
‘circumstances must be extraordinary to justify relief.’” Bailey v. Algonquin Gas Transmission
Co., 788 A.2d 478, 483 (R.I. 2002) (quoting Bendix Corp. v. Norberg, 122 R.I. 155, 158, 404
A.2d 505, 506 (1979)). As we previously noted in our order remanding the case to the Superior
Court, however, “an order granting a motion to vacate is interlocutory and not appealable.”
Moreover, we are convinced, as was the trial justice, that the loss of plaintiff’s primary expert
witness at the eleventh hour indeed created extraordinary circumstances warranting the vacation
of the judgment of dismissal.
C. Judgment of Dismissal Under Rule 41(b)
The plaintiff also appeals from the entry of judgment dismissing her complaint for lack of
prosecution under Rule 41(b)(1), arguing that the trial justice abused his discretion under the
4 The remaining conditions set forth in the order are:
“3. 	On or before January 23, 2006, Plaintiff shall submit a
properly sworn and notarized version of the Affidavit of Dr. Mayo
that Plaintiff presented to the Court on January 3, 2006.
“4. All pre-Judgment interest in this matter will be stayed and
no longer accrue or accumulate as of November 28, 2005.”
The order also provides that “2. * * * [t]he amount of costs and attorneys’ fees to be paid to each
Defendant * * * shall be determined upon hearing of the Court, at which time defense counsel
shall file with the Court an itemized statement of actual attorneys’ fees and costs incurred. 	No
limit has been set by the Court at this time with regard to the amount of costs and attorneys’ fees
to be paid to each Defendant * * *.” We would only add that plaintiff’s ability to pay will also
be a relevant consideration at any such hearing.

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circumstances by not granting her a continuance. 	Because the Court is evenly divided on the
issue, the judgment is affirmed.
III
Conclusion
Although we affirm the December 2, 2005 judgment in favor of the defendants, we also
affirm the order vacating said judgment subject to the conditions as modified in this opinion.
The record may be remanded to the Superior Court for further proceedings consistent herewith.
Chief Justice Williams did not participate.

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COVER SHEET
TITLE OF CASE: 	Maridel Allen, individually and on behalf of statutory
Beneficiaries, Frank Edward Allen and John M. Allen, III v.
South County Hospital et al.
DOCKET NO: 	2006-0006-A
COURT: 	Supreme
DATE OPINION FILED:April 14, 2008
Appeal from
SOURCE OF APPEAL: 	SuperiorCounty: Washington
JUDGE FROM OTHER COURT: 	Judge Allen P. Rubine
JUSTICES: 	Goldberg, J., Flaherty, J., Suttell and Robinson, JJ.
NOT PARTICIPATING: 	Chief Justice Frank J. Williams
WRITTEN BY: 	Justice Paul A. Suttell, for the Court
ATTORNEYS:
For Plaintiff: 	Kris Macaruso Marotti (for Allen)
ATTORNEYS:
For Defendant: Dennis T. Grieco, II (for Dr. McCormick)
Stephen P. Harten (for South County Hosp.)