STATEMENT OF THE CASE

On January 13, 2005, the plaintiff-appellee,

Charles Miller, Jr. (hereinafter, “Mr. Miller”),

commenced a wrongful death action in Worcester

Superior Court on behalf of his father, Charles

Miller, Sr. (hereinafter, “the decedent”) Mr.

Miller’s complaint alleges that the decedent’s death

was the direct and proximate result of the negligence,

gross negligence and breach of the duty to obtain

proper informed consent of the defendants. (Record

Appendix at 10-35).1 Specifically, the Mr. Miller

alleges that the decedent died as a direct result of

the unacceptable and grossly inadequate care and

treatment he received from his physician, Eric Cotter,

M.D., and the staff of Birchwood Care Center over the

course of his admission there from October 10, 2003

until November 4, 2003. (A. 10-35).

The Birchwood Care Center and its employees who

were individually named in the lawsuit, Lisa Waller,

R.N., Tracey Cokinis, L.P.N., and Shannon Valera, R.D.

(hereinafter, “the Birchwood defendants”) filed an

answer and a motion to dismiss, alleging the existence

1 References to the Record Appendix shall hereinafterbe cited as (A. ____).

2

of a binding arbitration agreement. (A. 52-55).

Following a hearing, the Superior Court entered an

order staying the case for ninety days to permit

discovery on the issue of whether the arbitration

agreement was enforceable. (A. at 60).

Pursuant to the Superior Court’s ruling that it

would consider the motion to dismiss as a motion for

summary judgment once the discovery period expired,

the Birchwood defendants filed a motion for summary

judgment together with plaintiff’s opposition papers

in accordance with Rule 9A of the Superior Court. (A.

61-375). After oral argument, the Superior Court

denied the defendants’ motion for summary judgment,

ruling that the alleged arbitration agreement was not

enforceable. (A. 376).

STATEMENT OF FACTS

At the time of his admission to Birchwood, the

decedent was a 91 year-old man whose son, Mr. Miller

held a durable power of attorney and a health care

proxy over him. (A. 175-182). Because he was no

longer capable of caring for himself, Mr. Miller had

been placed in a succession of nursing homes. (A.

3

304-305, at 128-132).2 He was admitted to Heywood

Hospital in October of 2003 after an incident that

occurred at Sterling Health Care Center, where he had

been living. (A. 126). During this hospitalization,

Mr. Miller was housed in the locked psychiatric ward.

(A. 126). He was released from Heywood Hospital to

Birchwood on October 10, 2003. (A. 126).

On October 10, 2003, the plaintiff was notified

that there was a nursing facility that might be

willing to accept his father. (A. 308, at 142).

Because the transfer was to take place that day, the

plaintiff left work in order to facilitate the

admission. (A. 308, at 142). Mr. Miller’s wife was

also present at Birchwood during the admissions

process. (A. 308, at 144).

The plaintiff and his wife met with Ms. Lynn

Wilson, LSW (hereinafter referred to as “Ms. Wilson”)

who was Birchwood’s representative and signed

2 The Record Appendix created by counsel for theBirchwood Defendants contains condensed transcriptsfrom the depositions of Lynn Wilson and Mr. Miller.Citations to such deposition transcripts, for clarity,will refer to the page of the Appendix with furtheridentification of the specific page of the depositionbeing used, e.g., (A. ____, at ____).

4

documents on behalf of the facility.3 (A. 308, at

144). According to Ms. Wilson, the meeting began at

about 3:00 or 3:30 in the afternoon. (A. 322, at 29).

The whole meeting took between an hour to an hour and

a half. (A. 332, at 62). Of that time, only

approximately five minutes was spent on the topic of

an Arbitration Agreement that she presented to the

Millers. (A. 330, at 62-63).

Prior to mentioning the Arbitration Agreement,

Ms. Wilson had to go through substantial information

and Mr. Miller had to sign numerous documents in

connection with his father’s admission. (A. 323, at

36; A. 324, at 37). The admission agreement and the

arbitration agreement were given to Ms. Wilson to

present to the Millers as one package of documents to

go through during this initial meeting. (A. 330, at

64). The packet had an illustration on the cover

entitled “Resident Admission Agreement.” (A. 341).

3 Ms. Wilson stated in her deposition that she did notordinarily conduct intake meetings at Birchwood andwas in fact “covering” for the person usually assignedto that task, the admissions coordinator. (A. 319, at18). Even during the period of time she was fillingin, approximately two months, she rarely admittedpatients to the dementia ward. (A. 319-320, at 18-22). She had only completed approximately two suchintakes for patients being placed onto the dementiaward. (A. 319, at 20)

5

Ms. Wilson testified that the admissions agreement and

the arbitration agreement is “all kind of the same.”

(A. 323, at 35). The arbitration agreement, however,

was the last thing covered in the meeting after all of

the other admissions paperwork had been completed.

(A. 328, at 54). Prior to hearing about or reviewing

the Arbitration Agreement, Mr. Miller had already gone

through what Ms. Wilson confirmed was “a lot of

information” in connection with his father’s placement

and had already been required to sign (and/or initial)

his assent in a number of places in the various

documents provided to him. (A. 324, at 37).

Although an affidavit of Ms. Wilson was submitted

in support of the Birchwood defendants’ motion, her

subsequent deposition provides a closer examination of

the actual presentation of the Arbitration Agreement

to Mr. Miller and reveals that she did not adequately

explain to Mr. Miller nor did she fully understand

herself the arbitration agreement. (A. 127). In her

deposition, the following colloquy took place as to

the five minute discussion about the arbitration

agreement:

Q. Did you sign an arbitration agreement on behalf of Birchwood?

6

A. Yes, I did.

Q. Tell me everything you would have toldthe Millers about that Agreement?

A. The Admissions Agreement –

Q. I’m sorry, I was asking at this pointjust about the Arbitration Agreement

A. Okay. It’s all kind of the same. Youknow, it goes and it was followingright after. Let me think. I wouldhave told that that it’s an Agreementthat is – let me just think – it’s anoption and it’s an Agreement that wouldbe there, if they wanted to, to ifthere was ever a dispute betweenBirchwood or Beverly, as a wholecorporation, and their dad or them,that is there for them to help keep itout of the court system, so that theycould be as – mediation to resolve thatdispute. And, at that time, I actuallyhad him – he asked to review it, andlooked at it and then signed it, but Itold him it was an option.

(A. 323, at 34-35). Ms. Wilson confirmed that she

gave the above information as a general summary of the

agreement. (A. 332, at 71). Contrary to her sworn

affidavit stating she read through the “entire

agreement” with Mr. Miller and “explained in detail

each provision” of the Arbitration Agreement (A. 127),

Ms. Wilson acknowledged in her deposition that she

only gave the above as a general description or

summary of what the Arbitration Agreement was about.

(A. 332, at 71).

7

Ms. Wilson stated in her sworn affidavit that she

explained in detail each provision of the Arbitration

Agreement to Mr. Miller. (A. 372). However, she did

not read the agreement to him and it is apparent from

her deposition that Ms. Wilson did not explain each

provision beyond the general summary discussed above,

nor did she herself understand some of the specific

provisions of the arbitration agreement. (A. 328, at

55; A. 332, at 69-71). For example, when asked if she

gave Mr. Miller any further detail as to the meaning

of Paragraph 3 of the Arbitration Agreement, Ms.

Wilson responded, “About Paragraph 3, no, I don’t give

any further detail.” Exhibit 3 at 69. (A. 332, at

69). When Ms. Wilson was specifically asked if she

specifically explained any further detail anywhere

else in the agreement, she testified that Paragraph 4

of the Arbitration Agreement means that, “it’s a

mediation that would be there to see both sides of the

situation of the complaint.” (A. 332, at 70).

Paragraph 4 of the Arbitration Agreement does not

state anything resembling her description. (A. 123).

That provision states in full:

It is the intention of the parties to thisArbitration Agreement that it shall

8

inure to the benefit of and bind the parties,their successors, and assigns, including withoutlimitation their agents, employees and servantsof the Facility, and all persons whose claim isderived through or on behalf of the Resident,including any parent, spouse, sibling, child,guardian, executor, legal representative,administrator, or heir of the Resident. Theparties further intend that this agreement is tosurvive the lives or existence of the partieshereto.

(A. 123). In light of her description of what

Paragraph 4 means and what she testified she thought

it meant, Ms. Wilson was pressed to identify where in

Paragraph 4 it said what she claimed it said. (A.

332, at 70-71). After being unable to answer, she

finally conceded that she only summarized for Mr.

Miller that the Arbitration Agreement was an option

and that it would act to keep disputes out of court,

but she did not go through the specific provisions of

each one and what they specifically meant as she had

represented in her sworn affidavit. (A. 332, at 71).

Ms. Wilson did not explain to Mr. Miller what

Birchwood was giving up in exchange for his agreement

to forego his right to a jury trial because she could

not conceive of any disputes Birchwood would have

against the Millers. (A. 326, at 48). Ms. Wilson

acknowledged that she understood that, in the context

of her own automobile insurance contract, she agreed

9

to a detriment (payment of premiums) in exchange for a

benefit (auto coverage) and that the insurer had

likewise agreed to a detriment (obligation to cover

claims) in exchange for a benefit (receipt of

premiums). (A. 324, at 38-39). When asked what

Birchwood gave up or what Mr. Miller gained from the

Arbitration Agreement, Ms. Wilson identified merely

that any disagreements or disputes would be kept out

of the Court system. (A. 324, at 39-40; A. 325, at

41-42). When pressed as to what type of dispute or

complaint Birchwood might have against Mr. Miller or

his family that Birchwood would be giving up its right

to go to court over, Ms. Wilson testified, “I don’t

know.” (A. 325, at 42-43). To clarify, the following

colloquy took place

Q. When you presented the Arbitration Agreementto Mr. Miller, is it fair to say that, inyour mind, you understood that patientcomplaints against Birchwood were the typesof complaints that would be not [sic] goingto court, but to arbitration.

A. Yes.

* * *

Q. Tell me the circumstances in which youviewed Birchwood filing a complaint againstthe Millers?

A. Birchwood wouldn’t really – they wouldn’tfile a complaint against the Millers.

10

(A. 326, at 48). [Emphasis supplied].

Ms. Wilson did not tell Mr. Miller that the

negligence of someone at Birchwood might result in

harm to his father. (A. 328, at 54). She did not

tell him anything about the number of claims that had

been made by other residents against Birchwood. (A.

328, at 54). Ms. Wilson was unaware and did not tell

Mr. Miller of any of the relative advantages or

disadvantages of arbitration versus the court system.

(A. 327, at 51). She couldn’t explain to Mr. Miller

how much faster (if faster at all) disputes could be

resolved through arbitration, nor could she explain to

Mr. Miller the relative results plaintiffs

historically received in arbitration versus the court

system. (A. 327, at 52). Ms. Wilson simply didn’t

have any information about the benefits or drawbacks

of arbitration, all of which would be important in

deciding whether to fully and finally waive a

constitutional right. It is certainly not the type of

information that could be adequately covered in the

five minutes she testified was spent in discussing the

Arbitration Agreement. (A. 330, at 62-63).

11

Ms. Wilson further stated that it was her

standard practice to explain to prospective patients

and their families that the arbitration agreement

covered “everything that takes place at Birchwood.”

(A. 329, at 58). Ms. Wilson told him this even though

physicians not employed by Birchwood (and therefore

not covered by the Arbitration Agreement) were known

to see and evaluate patients at Birchwood. (A. 329,

at 60; A. 330, at 61). Ms. Wilson did not inform Mr.

Miller that the actions or inactions of his father’s

doctor, Dr. Cotter, would not be covered by the

arbitration agreement because she believed the

Arbitration Agreement applied to “[t]o anything that

happened at Birchwood.” (A. 329, at 58). Dr. Cotter

was not a party to the Arbitration Agreement, was not

an employee of Birchwood that was covered by its terms

and his position in this matter is that he is not

seeking to or willing to arbitrate Mr. Miller’s claims

against him. (A. 123-125)

Ms. Wilson did not advise Mr. Miller that he

should consult with an attorney. (A. 328, at 54).

Although Mr. Miller had undergone the admissions

process at other long-term care facilities, having

attended his father’s admission to a number of nursing

12

homes, including Sterling Healthcare, Hillcrest

Nursing Home, and River Terrace Nursing Home, to the

best of his knowledge, Mr. Miller had never been

presented with an arbitration agreement during the

process of admission. (A. 305, at 129-132). Mr.

Miller, who testified that he was under a great deal

of stress throughout the admissions process at

Birchwood, has no memory of the arbitration agreement

being fully explained to him either as part of the

admissions agreement or as a separate contract. (A.

311, at 154-155). Mr. Miller stated that he did not

read the agreement and that he was nervous because he

“just wanted to make sure that there was no problem

getting dad admitted.” (A. 311, at 155).

While he was an inpatient at Birchwood, the

decedent was not evaluated by a physician for over

three weeks. (Plaintiff’s Offer of Proof at 132).

Upon admission of October 10, 2003, Mr. Miller’s

weight was approximately 149 pounds. (Id. at 133). A

physician evaluated him for the first time on November

1, 2003 after he was discovered lying face-down on the

floor next to his wheelchair. (Id. at 134). He

weighed 130 pounds. (Id. at 134) He had lost

13

nineteen pounds and suffered dehydration and worsening

pneumonia, which led to his death. (Id. at 135-138).

ARGUMENT

I. THE SUPERIOR COURT CORRECTLY ACTED WITHIN ITS DISCRETION IN DECLINING TO ENFORCE THE ALLEGED ARBITRATION AGREEMENT AGAINST THE PLAINTIFF DUE TO PROCEDURAL AND SUBSTANTIVE DEFICIENCIES

A. Standard of Review

Where a motion to compel arbitration is contested

by a party, the trial court judge hearing the motion

has discretion in deciding whether to compel

arbitration. See Computer Corp. of America v. Zarecor,

16 Mass. App. Ct. 456, 461-462 (1983). A trial

judge’s decision not to compel arbitration, based upon

grounds at law or equity for revocation of the

arbitration agreement, should not be disturbed on

appeal except upon a showing of an abuse of discretion

or that his finding that such grounds exist was

clearly erroneous. See id; see also Hague v. Piva, 61

Mass. App. Ct. 223, 229 (2004).4 In an analogous

context, trial court decisions as to whether a

4 In Hague, the Appeals Court affirmed the trialcourt’s implied decision to vacate a previous ordercompelling arbitration where the trial judge clearlyintended by his actions to void the arbitrationagreement upon grounds at law or equity for therevocation of contracts.

14

defendant has waived its right to arbitration are

likewise reviewed by the abuse of discretion standard.

See Martin v. Norwood, 395 Mass. 159, 162 (1985).

However, because the trial court in the case at

bar afforded the parties a limited discovery period

and an opportunity to submit discovery materials in

support of their respective positions on the issue of

arbitration, the Birchwood defendants’ motion to

dismiss the complaint and to compel arbitration was

treated as a motion for summary judgment. After

consideration of the summary judgment papers and oral

argument, the trial court judge declined to order

summary judgment in favor of the Birchwood defendants.

Accordingly, a summary of the standard of review on

appeal for the denial summary judgment is also

appropriate.

The party moving for summary judgment bears the

burden of affirmatively demonstrating the absence of

any genuine issue of material fact as well as

affirmatively demonstrating that he is entitled to

judgment as a matter of law. Community Natl. Bank v.

Dawes, 369 Mass. 550, 553 (1976); Lindsay v. Romano,

15

427 Mass. 771, 773 (1998); McGuinness v. Cotter, 412

Mass. 617, 620 (1992); Mass. R. Civ. P. 56(c). The

moving party bears the burden on a motion for summary

judgment even if that party would not bear the burden

of proof at trial. Pedersen v. Time, Inc., 404 Mass.

14, 16-17. (1989). “An order granting or denying

summary judgment will be upheld if the trial judge

ruled on undisputed material facts and his ruling was

correct as a matter of law.” Greater Lawrence

Sanitary Dist. v. North Andover, 439 Mass. 16, 20-21

(2003), quoting Augat, Inc. v. Liberty Mut. Ins. Co.,

410 Mass. 117, 120 (1991). Upon review, any

conflicts in the summary judgment record and any

reasonably permissible inferences must be resolved in

the non-moving party’s favor. Ulwick v.DeChristopher,

411 Mass. 401, 402 (1991); Coveney v. President &

Trustees of the College of the Holy Cross, 388 Mass.

16, 17 (1983).

B. The Trial Court Acted Within ItsDiscretion When It Ruled that Forcingthe Plaintiffs to Try Related Cases andClaims in Different Fora Would BeProcedurally and Substantively Unfair

The trial court acted within its discretion in

declining to compel arbitration under the

16

circumstances of this case. In deciding whether to

enforce an arbitration agreement, particularly one

signed in a non-commercial, quasi-fiduciary, setting

such as a meeting with a social worker at the time of

admission to a nursing home, a trial court may

appropriately consider the procedural circumstances

surrounding its execution and the substantive fairness

of the contract to determine whether contract defenses

such as duress and unconscionability warrant non-

enforcement of the agreement. The trial court may

also consider equitable factors that may be pertinent

under the specific circumstances of a given case. See

Computer Corp. of America v. Zarecor, 16 Mass. App.

Ct. 456, 461-462 (1983).

The Birchwood defendants have cited provisions of

both the Federal Arbitration Act and the Massachusetts

Uniform Arbitration Act for Commercial Disputes as

evidence that arbitration agreements are commonly used

in commercial contracts to provide an alternative

forum for dispute resolution. The plaintiff does not

dispute that arbitration agreements have been used in

this capacity. However, both parties recognize that

an arbitration agreement may be deemed unenforceable

by a trial court based upon any contract defenses that

17

exist at law or in equity. Neither federal nor state

legislation regarding arbitration agreements restricts

a Massachusetts trial court in its ability to pass

upon the enforceability of a specific arbitration

agreement when the procedural, substantive and/or

equitable facts surrounding the bargain warrant

voiding the agreement.

In the case at bar, the trial court considered

the procedural, substantive and equitable facts

surrounding this particular arbitration agreement.

After doing so, the trial court found that arbitration

should not be compelled. There was ample evidence to

support the trial judge’s decision.

Procedurally, in obtaining Mr. Miller’s signature

on the Arbitration Agreement, Ms. Wilson gave Mr.

Miller plainly incorrect information when she told him

that the Arbitration Agreement would apply to anything

and everything that takes place at Birchwood. (A.

329, at 58). The Arbitration Agreement unquestionably

does not apply to the plaintiff’s claims against Dr.

Cotter, (A. 123-125) who was not a party to the

arbitration agreement and who was not an employee of

Birchwood. See Ladd v. Scudder Kemper Invs., Inc.,

18

433 Mass. 240, 246 (2001). Therefore, Ms. Wilson’s

representation on behalf of Birchwood that the

Arbitration Agreement would apply to anything and

everything that happened while the decedent was

admitted to Birchwood was simply incorrect. (A. 329).

Substantively, if the arbitration agreement is

enforced, Mr. Miller would be compelled to try some

claims in the arbitral forum and some claims in Court,

even though all of these claims arise from the same

facts and circumstances surrounding the decedent’s

admission to Birchwood. The prejudice to all of the

plaintiff’s claims if such a “splitting” of claims is

required would be manifest. For example, if the

plaintiff is forced to arbitrate claims against

Birchwood without Dr. Cotter present, the Birchwood

defendants would have an unfair advantage because they

would be able to inculpate Dr. Cotter as being

responsible for the decedent’s wrongful death in the

arbitration, a forum in which Dr. Cotter would not be

subject to the factfinder’s jurisdiction. If this so-

called “empty chair” defense is permitted to be

presented in arbitration, the arbitrator may likely

conclude that the fault lies with Dr. Cotter and find

against the plaintiff. Likewise, a jury in the

19

Superior Court action against Dr. Cotter may then be

presented with the nursing home as an “empty chair,”

providing a jury with a basis for finding in favor of

Dr. Cotter and against the plaintiff.

This is not a speculative concern. In fact, the

Birchwood defendants filed with the Court a cross-

claim against Dr. Cotter indicating their position

that Dr. Cotter is responsible for all or part of the

damages claimed by the plaintiff against the Birchwood

defendants. (A. 375). To allow such a result would

be unfairly prejudicial to the plaintiff and the trial

judge acted well within his discretion in concluding

as such.

Moreover, if the trial judge had compelled

arbitration, the plaintiff would be forced to bear the

burden of substantial duplication of effort and

expense. The trial court noted the manifest inequity

and unfairness of such a result, stating that “I find

that to require the plaintiff to arbitrate some part

of this claim against the moving party, but not all

claims or parties result in an inequitable,

insufficient and unnecessarily expensive duplication

of effort...” (A. 376). Such considerations are

entirely appropriate and have been expressly

20

sanctioned by the Appeals Court. Computer Corp. of

America v. Zarecor, 16 Mass. App. Ct. 456, 461-462

(1983) (noting courts may consider that judicial

economy may be subserved by compelling arbitration

against one defendant while court litigation proceeds

as to another).

In Zarecor, the Appeals Court could “perceive of

no interest of judicial economy which would be served

by compelling CCA to arbitrate its claims against

Copeland while permitting this litigation to proceed

against Zarecor.” Id. The Appeals Court went on to

note that the trial court judge could properly

consider “increased obstructive delay and expense”

likely to follow if he had compelled arbitration as to

one party, but not the other. See id. In the case at

bar, the trial judge did consider these factors and

found that enforcing the arbitration agreement would

be substantially and procedurally unfair. In light of

the trial judge’s appropriate consideration of these

factors and the deficiencies in the explanation of the

process to Mr. Miller, the trial court’s denial of

summary judgment should be upheld.

For all the foregoing reasons, the denial of the

Birchwood defendants’ motion should be affirmed.

21

C. Arbitration Agreements Signed In A Non- Commercial, Quasi-Fiduciary Setting Such As Those Signed At The Time Of A Patient’s Admission to a Nursing Home Should Be Procedurally and Substantively Fairto Patients

No appellate decision in the Commonwealth

addresses the use of arbitration agreements executed

at the time of a patient’s nursing home admission.

Although the defendants cite several decisions from

other jurisdictions that have enforced arbitration

agreements pursuant to nursing home admissions

agreements, a number of appellate courts have recently

found nursing home arbitration agreements to be

unconscionable. See Small v. HCF of Perrysburg, Inc.,

159 Ohio App. 3d 66, 73 (2004), Romano Ex. Rel. Romano

v. Manor Care, Inc., 861 So. 2d 59, 62 (D.C.A. Fla, 4th

Cir. 2004), Howell v. NHC Healthcare-Fort Sanders,

Inc., 109 S.W.3d 731, 734 (App. Ct. Tenn. 2003). The

Birchwood defendants’ statement that these decisions

are not analogous to the present case did not persuade

the trial judge.

In Small v. Perryburg, Sybil Small, as executrix

of her late husband’s estate brought a wrongful death

action against her late husband’s nursing home after

he sustained a bad fall that caused his death. See

22

159 Ohio App. 3d 66, 73 (2004). The trial court held

that the contract was enforceable, in part because the

contract stated that the arbitration agreement was not

a condition of admission. Id. at 69. The appeals

court reversed the trial court’s decision, holding

that language in the contract stating “any

controversy, dispute, disagreement or claim” shall be

settled by binding arbitration meant that “for all

practical purposes,” signing the agreement was a

condition of admission. Id. at 72. Stating that

unconscionability was based on “the absence of

meaningful choice on the part of one of the parties to

a contract, combined with contract terms that are

unreasonably favorable to one party,” the court held

that the plaintiff’s level of stress at the time she

signed the agreement, coupled with the fact that the

arbitration agreement was not appropriately explained

to her compelled a finding that the agreement was

unconscionable. Id. at 71-73.

In Howell v. NHC Healthcare, the court held that

“the facts surrounding the execution of the

[arbitration] agreement militate against enforcement.”

109 S.W.3d 731, 735 (2003). In Howell, the husband of

the decedent signed paperwork admitting his wife to a

23

nursing home after she was released from the hospital

too ill to go home. See id. at 732. At an

evidentiary hearing, the court heard evidence that the

arbitration provision provided for exclusive

resolution of disputes by arbitration and mediation,

and that the plaintiff was not told that signing the

arbitration provision would serve as a waiver of his

right to a jury trial. See id. at 732-33. In

affirming a trial court judgment to hold the

arbitration agreement unconscionable, the court held

that expecting the plaintiff to fully comprehend the

terms of the agreement was not “within the reasonable

expectations of an ordinary person.” Id. at 734.

The Birchwood defendants have not cited any

Massachusetts case enforcing an arbitration agreement

in a nursing home admissions setting. Their reliance

on commercial cases in which arbitration agreements

have been enforced is misplaced because the agreement

at issue is easily distinguishable from a commercial

contract negotiated at arm’s length between parties

with equal bargaining power and, usually, a financial

interest incentive. The supporting cases cited by the

Birchwood defendants address the use of an arbitration

clause in a contract with a cruise line, and a

24

swimming pool installer. (A. 38, 41). The Birchwood

defendants’ position -- that an arbitration agreement

executed between a long term care facility and an

individual patient or his family at the time of

admission is analogous to any other commercial

contract -- generally ignores the setting in which

such agreements are presented to patients and their

families and specifically ignores the circumstances at

play in the present case where the arbitration

provision was not separately negotiated or adequately

explained by a representative of the nursing home who

was acting in a quasi-fidiciary role.

The Birchwood defendants acknowledge that

contract defenses such as unconscionability may serve

as the basis for revocation of an arbitration

agreement. Unconscionability is a question that

requires a consideration of the circumstances

surrounding the execution of the agreement and the

terms of the bargain. See Piantes v. Pepperidge Farm,

Inc., 875 F. Supp. 929, 936 (D.Mass. 1995), Zapatha v.

Dairy Mart, 381 Mass. 284, 292 (1980), Sosik v. Albin

Marine, Inc., 2003 WL 21500526 at *7. It is an issue

to be decided on a “case-by-case” basis. See Zapatha

at 935. If the court, after an examination of all

25

relevant facts, finds that the contract contains terms

that are manifestly unfair, oppressive, or which

constitute an “unfair surprise” for the party against

whom enforcement is sought, the court must find the

contract unenforceable. See Piantes v. Pepperidge

Farm, Inc., 875 F. Supp. at 936, Walters v. Min. Ltd,

412 Mass. 64, 68 (1992).

Unconscionability has both substantive and

procedural components. A contract may be held to be

substantively unconscionable when terms of the

agreement unreasonably favor the party with superior

bargaining power. See Buhrer v. BDO Seidman, LLP, 16

Mass. L. Rep., 551, *8 (2003) (citing Gillman v. Chase

Manhattan Bank, N.A., 534 N.E. 2d 824, 829 (N.Y.

1988). In contrast, procedural unconscionability

occurs when aspects of contract formation deny one of

the parties of real and meaningful choice. See

Piantes v. Pepperidge Farm, Inc. 875 F. Supp. at 936.

Massachusetts courts may decline to enforce a

contract based on unconscionability when either

procedural or substantive unconscionability is

demonstrated. See Walters v. Min. Ltd., 412 Mass. 64,

68 (1992). In determining whether a contract or a

26

contract provision is unconscionable, Massachusetts

courts have considered such factors as: (1) the

relative sophistication of the parties, (2) whether

the parties were assisted by counsel, (3) whether the

contractual provision was a subject of active

negotiation, (4) the frequency with which arbitration

contracts or provisions are used in similar

situations, (5) whether both parties acted at “arms

length” or whether one party was acting as a quasi-

fiduciary, and (6) whether the party seeking

enforcement took unfair advantage of the other party’s

weakness, vulnerability, or dependency, or used unfair

or improper tactics. See Nasco, Inc. v. Public

Storage, Inc., 1995 WL 337072, at *5 (D. Mass 1995),

Sosik v. Albin Marine 2003 WL 21500526 at *7.

In the case at bar, and like most patients or

family members of patients at the time of admission to

a long term care facility (such as the plaintiffs in

Small and Howell, (1) Mr. Miller was an individual

consumer of health care, not a large health care

business that had the benefit of lawyers drafting

complicated contract terms; (2) Mr. Miller did not

have the assistance of counsel, nor would a reasonably

skilled attorney recommend arbitration if it were

27

truly presented as an option (presumably one that

could be chosen if and when a dispute arose); (3) the

arbitration agreement was not actively negotiated; (4)

Mr. Miller did not recall any prior arbitration

agreements being presented in past admissions for his

father; (5) this was not an “arms length” transaction

and the person on behalf of Birchwood was a social

worker, who ordinarily act as quasi-fiduciaries; and

(6) there is no question that Mr. Miller was in a weak

and vulnerable position in that he had nowhere else to

turn if his father was not admitted, placing the

utmost importance on the admissions process going

smoothly.

Mr. Miller was in the very difficult position of

getting appropriate skilled nursing care for his

father, who had nowhere else to go. (A. 309, at 147).

He met with Lynn Wilson, a social worker. (A. 317, at

12). In the light most favorable to the plaintiff,

Mr. Miller was under a great deal of stress when he

engaged in the admissions process at Birchwood. (A.

311, at 155). He was immensely concerned that this

admissions process run smoothly because the Millers

had nowhere else to turn for help with their father,

28

who desperately needed the services Birchwood could

provide. (A. 309, at 147).

He met for approximately an hour and a half with

Ms. Wilson, dealing mostly with the admissions

paperwork. (A. 308, at 144). He had been asked to

sign documents in numerous locations as part of the

admissions process. In the last five minutes, she

presented another document for his review. (A. 330,

at 62-63). She briefly summarized that this last

document was an option that is available to keep

disputes with the facility outside of lengthy court

proceedings. (A. 323, at 34-35; A. 327, at 49-50).

She did not read it to him, and she did not explain

the specific provisions authored by or on behalf of

Birchwood that involved complex legal terms and

concepts. (A. 328, at 55). She did not advise him

that he should get an attorney to help him with this

decision. (A. at 328, at 54). Ms. Wilson could not

tell Mr. Miller of any of the relative advantages or

disadvantages of arbitration versus the court system.

(A. 327, at 50-52). She could not explain to Mr.

Miller how much faster (if faster at all) disputes

could be resolved through arbitration, nor could she

explain to Mr. Miller the relative results plaintiffs

29

historically received in arbitration versus the court

system. (A. 327, at 52). Ms. Wilson simply didn’t

have any information about the benefits or drawbacks

of arbitration, all of which would be important in

deciding whether to fully and finally waive a

constitutional right. She never left the room to give

him an opportunity to discuss the matter outside of

her presence with his wife. (A. 328, at 55-56.) She

incorrectly told him the agreement would apply to any

and all complaints he might have arising from his

father’s stay at Birchwood, even though doctors not

parties to or subject to the Arbitration Agreement

could be expected to render care to him. (A. 329-330,

at 57-61). It is under this procedural background

that Mr. Miller signed the Arbitration Agreement.

Thus, it is not surprising that Ms. Wilson is almost

100% effective at having arbitration agreements signed

for Birchwood’s benefit, having presented

approximately 15 to patients or their families during

her time at Birchwood and having obtained signatures

on 14 of them. (A. 328, at 53).

While the defense suggests that Mr. Miller was

familiar with arbitration, it is clear from his

deposition that he did not understand its meaning.

30

Mr. Miller testified that arbitration means “to

resolve a situation by mutually discussing it.” (A.

292, at 78). So, while he acknowledged having heard

the term in the course of living his life, his

understanding of arbitration specifically was clearly

rudimentary at best. Although the Birchwood

defendants take great pains to explain Mr. Miller’s

employment history in an effort to establish his

sophistication, the reality is that the arbitration

agreement signed by Mr. Miller was clearly not

analogous to contracts he may have been involved with

during his professional career. In his professional

career, Mr. Miller may have been involved in arms

length negotiations between parties working from equal

bargaining positions. Again using the insurance

context as an example, a company buying disability

insurance for its employees or even individual

consumers buying disability insurance represents a

transaction in which there are alternatives,

competition and the potential for negotiation.

Moreover, even Ms. Wilson, whose job on behalf of

Birchwood was to explain the paperwork presented to

patients and their families at the time of admission,

including the arbitration agreement, could not explain

31

each provision of the arbitration agreement. In her

sworn affidavit prior to her deposition, she claimed

to have explained each provision in detail to Mr.

Miller. (A. 372-373). However, at her deposition,

she admitted that she only summarized for Mr. Miller

that the Arbitration Agreement was an option and that

it would act to keep disputes out of court, but she

did not go through the specific provisions of each one

and what they specifically meant as she had

represented in her sworn affidavit. (A. 332, at 69-

71).

In the case at bar, however, there was no

assistance of counsel, the arbitration agreement was

not a subject of active negotiation between

adversarial parties, he was meeting with a social

worker, not a commercial representative and Mr. Miller

was in a vulnerable position as a result of the

circumstances that brought him to the meeting in the

first place, regardless of whether the agreement was

presented as a take it or leave it agreement. The

agreement was packaged in and among voluminous

admissions papers that Ms. Wilson referred to as “all

kind of the same.” (A. 323, at 35). Under the

totality of the circumstances, it cannot be said that

32

the trial court erroneously round that this was an

agreement that should not be enforced.

D. In Addition to Procedural and Substantive Deficiencies, the Arbitration Agreement Lacks Consideration

Although the trial court did not expressly

mention it the basis for his denial of the request to

compel arbitration, the arbitration agreement upon

which Birchwood relies simply does not contain

reciprocal obligations and lacks consideration in

favor of the plaintiff. Massachusetts courts have

traditionally interpreted mutuality of agreement as

meaning that “both parties will encompass an identical

exchange of benefit and detriment.” Given v. Commerce

Insurance, 2002 WL 1020660, at * 4; see also, Gill v.

Richmond Cooperative Ass’n, 309 Mass. 73, 80 (1941),

Bernstein v. W.B. Mfg. Co., 238 Mass 589, 591 (1921).

Thus, as in the present case, when a contract is so

one-sided as to be a forfeiture of rights for one

party with zero or little sacrifice by the other, the

contract should not be enforced.

The arbitration agreement provides, inter alia,

that:

33

“This agreement to arbitrate includes…any claim for... violations of any right granted to the residentby law or by the Admission Agreement, breach ofcontract, fraud or misrepresentation, negligence,gross negligence, malpractice, or claims based onany departure from accepted medical or health careor safety standards.”

(A. 123). [Emphasis supplied]. In the delivery of

nursing home care, scenarios in which a plaintiff

might have a legal action against the facility or its

employees are easily foreseeable. Negligent or

grossly negligent medical care, negligence of non-

medical staff and negligence in the provision of

security for inpatients are all reasonably foreseeable

circumstances that may occur in the nursing home

setting. The arbitration agreement, if enforced,

therefore confers a clear and unequivocal benefit on

the nursing home and, unquestionably, constitutes a

detriment to Mr. Miller. Obviously, had he not been

induced to sign the Arbitration Agreement, he could

always agree at the time of any dispute to arbitrate

it.

It is a basic principle that, for a valid

contract to be formed, the nursing home must undertake

a detriment and confer a benefit upon Mr. Miller.

This point was made in the deposition of Lynn Wilson,

34

who acknowledged that she understood that, in the

context of her own automobile insurance, she agreed to

a detriment (payment of premiums) in exchange for a

benefit (auto coverage) and that the insurer had

likewise agreed to a detriment (obligation to cover

claims) in exchange for a benefit (receipt of

premiums). (A. 324, at 38-39). In the case at bar,

the Birchwood defendants did not give up anything in

exchange for Mr. Miller’s agreement to forego his

right to a jury trial. Despite the Birchwood

defendants’ assertion that the arbitration provision

provided “mutual covenants that could be enforced by

either party,” the reality is that there was no

remotely equivalent promise by Birchwood to the

plaintiff’s agreement to forego a jury trial against

Birchwood for torts committed against his father. The

only meaningful surrender of rights was on the part of

the plaintiff.

In their motion for summary judgment, the

Birchwood defendants assert that according to the

express terms of the agreement, the arbitration

agreement “may be invoked by either party concerning

any claim.” This simply defies reality. In fact,

despite repeated questioning by plaintiff’s counsel,

35

Ms. Wilson – the woman who allegedly explained the

arbitration agreement to the Millers – was unable to

envision a realistic scenario in which Birchwood would

have a cause of action against Mr. Miller. Finally,

she conceded that the disputes that would be

arbitrated would be those brought by the patient or

their family against Birchwood. (A. 326, at 48).

The Birchwood defendants state that Birchwood

could have alleged a cause of action against Mr.

Miller for nonpayment. This claim is disingenuous.

As acknowledged by Ms. Wilson, the plaintiff’s

decedent’s care was not being paid by the Millers

directly. (A. 326, at 45). In fact, Ms. Wilson

acknowledged a document in the admissions packet that

had Medicare and Medical Assistance checked off as the

form of payment for this admission and private pay was

not checked. (A. 374). Therefore, the likelihood of

a direct action by Birchwood against the Millers for

non-payment or any other cause was entirely

unrealistic and unforeseeable. Moreover, the

agreement to arbitrate a totally unlikely claim for

non-payment cannot reasonably be considered to offset

Mr. Miller’s essentially unilateral agreement to

arbitrate torts, which were entirely foreseeable.

36

CONCLUSION

For all of the foregoing reasons, the Appellee

respectfully requests that this Honorable Court affirm

the order denying the Birchwood defendants’ request to

compel arbitration.

Respectfully Submitted,The Plaintiff, CharlesMiller, Jr. PersonalRepresentative of the Estateof Charles Miller, Sr.By his attorneys,

__________________________

ANDREW C. MEYER, JR.ADAM R. SATINLUBIN AND MEYER, P.C.100 City Hall PlazaBoston, MA 02108(617) 720-4447B.B.O. No.: 344300B.B.O. No.: 633069