Baldi v. John T. Broderick, Jr., et al

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
John A. Baldi
v. Civil No. 04-cv-466-PB
John T. Broderick, Jr., et al.
REPORT AND RECOMMENDATION
Judge Barbadoro granted defendants’ Motion for Default
Judgment. A default or entry of fault establishes liability, but
does not fix the amount of damages. As a consequence, the matter
was referred to me for an evidentiary hearing and a Report and
Recommendation.
Background
DAMAGES STANDARDS
The Browns’ counterclaims each contain four causes of
action:
Count I - Abuse of Process;
Count II - Intentional Infliction of Emotional
Distress; and
Count III - Negligent Infliction of Emotional Distress.
Count IV - Harassment and Invasion of Privacy.
Each count is based upon New Hampshire common law. The damages
recoverable under each claim are set forth below.
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1. Damages provable for abuse of process include:
(a) the harm normally resulting from any arrest or
imprisonment, or any dispossession or interference
with the advantageous use of his land, chattels or
other things, suffered by him during the course of
the proceedings, and
(b) the harm to his reputation by any defamatory
matter alleged as the basis of the proceedings,
and
(c) the expense that he has reasonably incurred in
defending himself against the proceedings, and
(d) any specific pecuniary loss that has resulted from
the proceedings, and
(e) any emotional distress that is caused by the
proceedings.
Restatement (Second) of Torts § 681.
2. Damages for negligent infliction of mental distress
require:
(a) emotional harm that is “a significant, painful,
mental experience with lasting effects”.
O’Donnell v. HCA Health Services of New Hampshire,
Inc., 152 N.H. 608, 611, 883 A.2d 319, 324 (2005);
(b) “(D)emonstrated physical symptoms of . . .
distress regardless of physical impact.” Id.; and
(c) “(E)xpert testimony is required to prove physical
symptoms suffered from alleged negligent
infliction of emotional distress.” Silva v.
Warden, N.H. State Prison, 150 N.H. 372, 374, 839
A.2d 4, 6 (2003).
3. On the other hand, damages for intentional infliction
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of emotional distress “are recoverable without the necessity of
showing actual physical injury or offering expert testimony
. . . .” Id. The compensable emotional distress for this tort
must be severe emotional distress. Morancy v. Morancy, 134 N.H.
493, 496, 593 A.2d 1158, 1160 (1965). Severe emotional distress
can include fright, shock, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, worry,
apprehension, anxiety, mortification, nervousness, and terror.
It can create mental disorders and physical manifestations like
crying, sleeplessness, headaches and nausea. It may interfere
with normal relationships and interfere with daily functions.
See 43 Am. Jur. Proof of Facts 2d, Emotional Distress §§ 16-17.
The key is that it must be severe, not garden variety, emotional
distress.
4. Damages for invasion of privacy include damages for:
(a) the harm to his interest in privacy resulting from
the invasion;
(b) his mental distress proved to have been suffered
if it is of a kind that normally results from such
an invasion; and
(c) special damage of which the invasion is a legal
cause.
Restatement (Second) of Torts § 652H. Humiliation actually
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suffered is specifically included where it normally results from
the invasion. Id., Comment b.
FACTS
Mr. and Mrs. Brown have been married for over forty years.
During their marriage Mr. Brown has always done septic and other
excavation/grader type work. He has his own corporation. Mrs.
Brown keeps the books of the business and has been employed for
many years by the New Hampshire Senate. The Browns lead a quiet
life and mind their own business.
In 2001, Baldi was engaged in one of his numerous suits in
this court; in particular, a suit against the Town of Epsom
relative to culvert work on Center Hill Road. Town counsel
obtained an affidavit from Mr. Brown in connection with a motion
filed in the case. The suit was dismissed in this court, but it
was immediately renewed in state court by Baldi. The Browns’
hell began as Baldi now included Mr. Brown as one of the
defendants simply because he had provided an affidavit to
counsel. Judge Fitzgerald of the Merrimack Superior Court
dismissed the case against Brown, found it was a groundless suit
filed with the intent to harass, and awarded Mr. Brown $9,000.00
in legal fees against Mr. Baldi.
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Baldi is a law school graduate but is an unsuccessful
applicant to the Massachusetts Bar. Undeterred by his legal
education, the force of Judge Fitzgerald’s sanction, or good
sense, Baldi appealed to the New Hampshire Supreme Court - and
lost. That only whetted his appetite for more litigation. Baldi
then proceeded to sue Mr. Brown in four suits in this court:
03-cv-96-PB, 04-cv-206-SM, 04-cv-466-PB and 07-cv-024-SM. He
included Mrs. Brown on wholly frivolous grounds in the latter
three suits. When he was forbidden to file any further suits
here, he brought a suit in Catherine Baldi’s name - 03-cv-342-PB
which was a virtual copy of one of his dismissed suits. Baldi
has been wholly unsuccessful in every suit.
Baldi’s suit for $1.5 million dollars adversely affected Mr.
Brown’s bonding capacity and impacted his business and personal
credit. Baldi made erroneous but intentionally harmful
allegations to state regulatory authorities, which impacted Mr.
Brown before state regulators. He has falsely accused Mr. Brown
of crime and sought to have him arrested. Baldi appears to be on
a twisted frolic, subjecting the Browns to five years of one
frivolous suit after another.
Baldi has filed frivolous suit after frivolous suit in this
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1Attached is a list from this court.
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court and in state courts.1 After the defaults entered in this
case, he had the temerity to sue the Browns over the
counterclaims - see 07-cv-024-SM. The frivolous nature of his
suits is further demonstrated by his suits against all the state
judges he appeared before and the 18-20 town officials he has
sued numerous times.
The problems and damages caused to the Browns by this
misguided and uncaring litigant cannot be overstated. The damage
and destruction Baldi brought into the lives of the Browns was
evident in their testimony. Baldi’s lack of remorse was just as
evident.
LEGAL FEES
Exhibit J, as corrected, details the legal fees incurred by
defendant-counterclaim defendants. The fees totaled $31,213.02
less the $9,075.00 awarded and paid previously, leaving a net of
$22,138.02. The amount is very reasonable considering the number
of suits, the vexatious nature of them, and the modest hourly
rates charged and the efficiency and proficiency of counsel. I
recommend that Ronald and Gail Brown be jointly awarded
$22,138.02 in legal fees.
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OTHER DAMAGES
Since the Browns did not provide expert testimony as to
their emotional harm and physical symptoms, no award is
recommended for the negligent infliction of mental distress.
However, the evidence of emotional distress, harm to their
privacy interests and damage to reputation under the other three
counts of their counterclaims is compensable.
The unrelenting and vexatious litigation tactics of Baldi
have severely damaged the emotional and physical well being of
Mr. Brown. Brown is a quiet, reserved man with a reading
disability. He is a septic installer and site work operator,
dependent upon his New Hampshire license which Baldi’s litigation
tactics affected. Simply because he provided an affidavit in a
case Baldi had against a town, Baldi sued Mr. and Mrs. Brown
multiple times on frivolous grounds alleging $1,500,000.00 in
damages. Baldi also filed complaints against him with state
agencies and tried to have the Browns and their attorney arrested
by the United States Attorney. The suits covered all but four
months of a five year span.
Mr. Brown’s blood pressure soared. His anxiety level rose.
He had problems sleeping. He became fearful and depressed. His
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health deteriorated. His untarnished record before the
Department of Environmental Services was blemished. The Baldi
suits and charges spread throughout the town and caused people to
talk about the Browns and inquire of them about Baldi’s claims.
The suits resulted in the denial of bank credit to Mr. Brown and
impacted his bonding for construction. Mr. Brown has had a heart
attack, which required in excess of $15,000.00 in medical and
drug treatment. He has been greatly embarrassed and devastated
by Baldi’s action revealing his inability to read and by
allegations of illegality. Since no medical evidence ties the
bills directly to Mr. Brown’s emotional distress, I do not
recommend payment of them as damages. They do, however, buttress
Mr. and Mrs. Brown’s testimony as to the impact on him.
The cold record cannot fully reflect the adverse impact on
the emotional well-being of the Browns. As a fact finder
assessing their words and demeanor, I find them both fully
credible. I recommend that Mr. Brown be awarded the sum of
$135,000.00 for his humiliation, embarrassment, shame, anxiety,
depression, sleeplessness, fright and emotional and mental
distress.
Mrs. Brown, a secretary at the New Hampshire Senate, is also
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a quiet, private person who was pursued at work by Baldi for
deliveries and service of process. She lost time from work. She
was humiliated and stressed by outrageous questioning about her
sex life by Baldi at a deposition. She too has offered evidence
of her stress and has been treated for stress. She developed
colitis. She became fearful, tense and distraught. Her
enjoyment of life was destroyed for five years as first her
husband, then she, were both irresponsibly sued. Baldi’s
distorted view of the law and facts resulted in an intentional
pattern of frivolous allegations, claims and lawsuits against
Mrs. Brown which gave her great stress, destroyed her privacy and
emotionally harmed her. She had done nothing to justify such
intentional and irresponsible harassment. I recommend that Mrs.
Brown be awarded the sum of $85,000.00 for her humiliation,
embarrassment, shame, anxiety, depression, fright and emotional
and mental distress.
It is hard to overstate the callousness, viciousness and
frivolity of Baldi’s litigious attack on Mr. and Mrs. Brown. I
recommend, in summary, that the following damages be awarded:
Mr. Brown $135,000.00
Mrs. Brown: 85,000.00
Mr. & Mrs. Brown Legal Fees: 22,138.02
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Together with interest and costs.
Any objections to this report and recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court’s order. See Unauthorized Practice of
Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);
United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).
_________________________________
James R. Muirhead
United States Magistrate Judge
Date: June 21, 2007
cc: John A. Baldi, pro se
Brian J.S. Cullen, Esq.
John A. Curran, Esq.
Daniel J. Mullen, Esq.
Charles A. Russell, Esq.
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