In ‘Good Samaritan’ case, parties at sea over expert

Motion: city’s mayor is part of intimidation ploy

The captain of the Orin C lost his life when the fishing boat flooded and began to sink on Dec. 3, 2015.
The captain of the Orin C lost his life when the fishing boat flooded and began to sink on Dec. 3, 2015.

A lawsuit against a Good Samaritan whose rescue attempt failed to spare the life of a Gloucester fishing boat captain has led to an accusation of witness tampering involving the city’s mayor and a local resident who heads the state lobstermen’s association.

The plaintiffs’ attorney, Joseph M. Orlando Jr. of Gloucester, filed the motion for sanctions shortly after his clients — the estate of David C. “Heavy D” Sutherland, captain of the Orin C, along with Sutherland’s two surviving crewmembers — partially survived a motion for summary judgment.

At issue is Orlando’s decision to retain as an expert witness Thomas P. Ciarametaro Jr., who has served as Gloucester’s harbormaster since 2016 after spending 11 years on active duty with the U.S. Coast Guard.

Before taking on his role in the case involving the Orin C, Ciarametaro says he got the green light from the State Ethics Commission.

Attorney for estate
Attorney for estate

But 12 days after U.S. District Court Judge Patti B. Saris denied a motion for summary judgment as to claims against the Orin C’s would-be rescuers, Ciarametaro says he began to receive calls from Gloucester city officials pressuring him to discontinue his service as Orlando’s expert witness.

After an initial phone call, Ciarametaro says he texted Mayor Sefatia Romeo Theken requesting a meeting, but she replied with a terse “no.”

Ciarametaro alleges Theken then sent him a “screaming” voice memo, in which she called him a “fraud” who never should have been hired. Ciarametaro says Theken warned: “If you still want to be harbormaster, you will stop this.”

Ciarametaro says he tried to save the message, but it “automatically erased itself.”

Gloucester’s general counsel soon echoed the threat, telling Ciarametaro he needed to “do the right thing,” Ciarametaro says.

Given the two-plus years of work he had put into the case, Ciarametaro says he stressed to city officials that dropping out would be “not that simple.” But those pleas fell on deaf ears.

Ciarametaro became concerned enough about his job security to retain an attorney, Liam T. O’Connell of Gloucester.

“Mr. Ciarametaro continues to be focused on serving as Gloucester’s harbormaster and as a chief petty officer in the [Coast Guard] Reserves,” O’Connell writes in an emailed statement. “The appropriate venue for resolution of the ongoing civil case is the District of Massachusetts with Judge Saris, not with Mr. Ciarametaro’s employer.”

O’Connell declines to comment further.

Ill-fated tow

The attempted rescue of Sutherland and his crew was an all-day affair, as described in a harrowing next-day account in the Salem News.

Philip Powell of Swampscott, captain of the ground fishing boat the Foxy Lady, first heard Sutherland’s distress call at around 9:30 a.m. on Dec. 3, 2015.

The Foxy Lady was about 16 miles away, and it took Powell’s boat two hours to reach the Orin C.

Powell was forced to use an admittedly inadequate towline, given the conditions: winds rising to between 30 and 35 knots and seas swelling from 8 to 10 feet.

The plaintiffs are suing the Foxy Lady and its captain over a failed attempt to tow the Orin C and its crew.
The plaintiffs are suing the Foxy Lady and its captain over a failed attempt to tow the Orin C and its crew.

The towline snapped four times, the last one as the result of a “rogue wave,” which punched in two windows in the Orin C’s pilothouse and peeled back a section of its roof, allowing water to enter the vessel.

Powell called in the Coast Guard shortly thereafter, which took charge of the tow. But as an onboard pump failed to keep up with the water the Orin C was taking on, Sutherland and his two crewmembers were told to don their immersion suits and enter the frigidstormy sea, one at a time.

The Coast Guard plucked Sutherland’s crewmembers from the water. But after the entire stern of the Orin C flooded and the boat began to sink, Sutherland managed to swim away only briefly before his body went limp and repeatedly submerged.

More than an hour’s worth of CPR and the attempted use of a medical helicopter failed to save his life.

Orlando’s clients originally sued both the Coast Guard and Capt. Powell and the Foxy Lady. But Saris dismissed the claims against the Coast Guard, finding that the “discretionary function” exception applied, entitling the Coast Guard to sovereign immunity.

Meanwhile, Powell argued that under the Good Samaritan doctrine, he had not breached any duty to the Orin C as a matter of law. But Saris noted that the Restatement (Second) of Torts §323 lays out two ways a Good Samaritan can still be liable for negligence, including “negligent increased risk of harm,” which may apply here.

If and when the case goes to trial, a central disputed issue of fact will be whether the Foxy Lady and Orin C were “in step,” or cresting away at the same time. When vessels are not in step during a tow, the vessel being towed can be pulled into the face of a wave, amplifying its strength.

Saris noted that testimony from crewmembers on both vessels lend some support to the allegation that they were indeed out of step, possibly due to the substandard tow line.

While Saris called Powell’s actions “admirable,” she agreed with the plaintiffs that there were “genuine disputes of fact as to whether the Orin C suffered damage during and because of the Foxy Lady’s tow.”

“Grants of summary judgment in negligence cases are ‘rare birds’ so Powell and the Foxy Lady must bear this albatross,” she wrote.

Key figure

While initially perplexed by the sudden involvement in his clients’ case by the mayor and members of her administration, Orlando says the instigator of the pressure campaign was eventually unmasked, thanks to an email exchange with opposing counsel.

While Capt. Powell’s attorney, Kevin F. Gillis of Canton, initially identified the person who had prevailed upon the mayor as a “longtime Gloucester fisherman,” Orlando knew Arthur “Sooky” Sawyer was more than that.

Sawyer is president of the Massachusetts Lobstermen’s Association and also the treasurer and a director of MLA Fisheries Services Corp., which Orlando alleges has a financial stake in the outcome of the current litigation.

According to its website, MLA Fisheries Services provides “administrative service” — claims processing — on behalf of MLA Non-Profit Boat Protection Coop, Ltd., a Bermuda-based commercial marine insurer. The insurance carrier counts among its customers Powell and the Foxy Lady, according to Orlando.

As a result, in addition to filing his emergency motion for sanctions, Orlando fired off a demand letter to Sawyer, alleging both unfair settlement practices under Chapters 93A and 176D and violations of federal and state witness intimidation statutes, 18 U.S.C. §1512 and G.L.c. 268, §13(B).

Orlando’s sanctions motion seeks nearly $29,000 in legal fees, an entry of favorable judgment on the issues of liability and causation, and a referral to the U.S. Department of Justice “for investigation of the violations of various criminal statutes.”

Through Lobstermen’s Association Executive Director Beth Casoni, Sawyer declined to comment.

No push needed

In his response to the sanctions motion, Gillis writes that Orlando, of all people, should have known how the mayor felt about whether Capt. Powell and the Foxy Lady should be sued, given that the mayor had reportedly urged Orlando’s father and law partner, Joseph M. Orlando Sr., not to pursue a case against Powell.

Such a position is hardly surprising, given that commercial fishermen comprise a good chunk of Mayor Theken’s political base, Gillis suggests.

gillis“If Attorney Orlando knew how the Mayor felt about the case, why on earth would he seek out a member of her administration to testify against a local fisherman — a Good Samaritan, no less — on such a controversial topic?”

— Kevin F. Gillis, writing in opposition to sanctions motion

“If Attorney Orlando knew how the Mayor felt about the case, why on earth would he seek out a member of her administration to testify against a local fisherman — a Good Samaritan, no less — on such a controversial topic?” Gillis writes in a footnote in his opposition to the sanctions motion.

In an emailed statement to Lawyers Weekly, the mayor echoes that idea.

“The brave men and women who operate Gloucester’s fishing fleet have always looked out for each other, and they always will,” she writes. “We in government should do everything we can for their safety, including helping them to keep each other safe. We should never do anything that might cause them to hesitate in coming to the aid of a stricken vessel.”

Gillis says that, throughout the litigation, local fishermen up and down the state’s coast have not been shy about sharing their thoughts about the unfairness of Powell being sued. He adds that word of Ciarametaro’s role brought a fresh chorus of howls from the commercial fishing community.

The mayor stresses that she does not know all the facts in the present case and has a policy of not taking sides in any private lawsuit.

“But I believe that it is the public policy of the City to encourage Good Samaritans at sea,” Theken writes. “And I must question the judgment of any City official who acts contrary to that policy.”

Given that predictable stance, Gillis suggests in his filings that the mayor hardly needed to be prodded by Sawyer — or anyone else, for that matter.

“The irony here is that if Ciarametaro’s job as the city’s harbormaster is in jeopardy, the roots of his predicament are plain for all to see,” he writes.

Saris plans to hear oral arguments on Orlando’s sanctions motion — along with the parties’ dueling motions to strike each other’s expert — on May 27.

Source: https://masslawyersweekly.com/2020/05/14/in-good-samaritan-case-parties-at-sea-over-expert/

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