KRISTEN BAKER, Individually and in her capacity as Administratrix for the Estate of Kathleen Fonseca, and AMADEU FONSECA
PAWTUCKET SKILLED NURSING AND REHABILITATION, LLC; 70 GILL AVENUE OPERATIONS, LLC; GENESIS OMG OPERATIONS, LLC, and JANE DOES
County Superior Court PC 15-0181
Plaintiff: Michael Bottaro, Esq.; Tamera Nichole Rocha, Esq.
Defendant: Sheri Pizzi, Esq.
instant matter originally came before the Court on September
16, 2015 on Defendants' motion to dismiss the
Plaintiffs' Complaint or, in the alternative, to stay
proceedings and compel arbitration in accordance with an
arbitration agreement (the Arbitration Agreement or
Agreement) signed by the Plaintiffs' decedent, Kathleen
Fonseca (Ms. Fonseca or Decedent) and Pawtucket Skilled
Nursing and Rehabilitation, LLC (the Pawtucket Center or
Defendant). Because the Plaintiffs called into question the
validity of the Arbitration Agreement, the Court scheduled
the matter for an evidentiary hearing pursuant to G.L. 1956 §
10-3-5. For the reasons set forth herein, the
Court finds that the manner in which the Arbitration
Agreement was presented to Ms. Fonseca made it procedurally
unconscionable, and further that Ms. Fonseca lacked capacity
to enter into a valid Arbitration Agreement based on the
relevant circumstances at the time she signed it. Therefore,
Defendants' motion to dismiss the Plaintiffs'
Complaint or, in the alternative, to stay proceedings and
compel arbitration, is denied.
September 11, 2013, Ms. Fonseca was admitted to the Pawtucket
Center following surgery to repair a broken hip. At some
point on the following day-the exact time is not known-Ms.
Fonseca allegedly signed the Arbitration Agreement,
purporting to bind both parties to arbitration regarding any
disputes arising out of her stay at the Pawtucket Center. Ms.
Fonseca subsequently died on November 18, 2013. Her daughter,
Kristen Baker (Ms. Baker), individually and in her capacity
as administratrix of Ms. Fonseca's estate, filed suit
against the Pawtucket Center and other Defendants on January
14, 2015, claiming wrongful death. The parties agree that Ms.
Baker did not demand arbitration prior to filing suit. Ms.
Fonseca's husband, Amadeu Fonseca (Mr. Fonseca), joined
in the action claiming loss of consortium.
Pawtucket Center sought to dismiss the complaint pursuant to
Super. R. Civ. P. 12(b)(1), 12(b)(3), and 12(b)(6), or, in
the alternative, to stay proceedings and compel arbitration
in accordance with the Arbitration Agreement and pursuant to
§ 10-3-1 (the Arbitration Act). Conversely, Plaintiffs
moved for an evidentiary hearing with limited discovery
pursuant to § 10-3-5. On September 16, 2015, the motions
were argued before the Court. The Court determined that the
Arbitration Agreement, if valid, was binding against all the
named Plaintiffs, including Ms. Baker and Amadeu Fonseca.
However, the Court also determined that the validity of the
Arbitration Agreement remained in question, and granted
Plaintiffs' request for an evidentiary hearing on that
limited issue pursuant to § 10-3-5.
evidentiary hearing, Plaintiffs' case in chief included
testimony from Lisa Marwell-Bussick (Ms. Marwell-Bussick),
the Assistant Director of Admissions at the Pawtucket Center
at the time Ms. Fonseca was a patient there; Ms. Baker; Brian
Martel, Ms. Baker's boyfriend who knew Ms. Fonseca; and
Dr. Francis Sparadeo, an expert witness specializing in
Clinical Neuropsychology. Defendants' case in chief
included expert testimony from Dr. Mark Rohrer, who
specializes in internal medicine and post-acute care, with an
additional certification in geriatrics. Both parties provided
the Court with a number of exhibits.
Marwell-Bussick testified that she was Assistant Director of
Admissions at the Pawtucket Center during the time that Ms.
Fonseca was a patient there. She had no medical or legal
training and had no prior experience with arbitration
agreements. As part of her responsibilities, Ms.
Marwell-Bussick would review an admissions packet (the
Admissions Packet) for the Pawtucket Center with each patient
when they were admitted to the facility. This Admissions
Packet would always include the Arbitration Agreement and
needed to be completed within twenty-four hours. Ms.
Marwell-Bussick further testified that before reviewing the
Admissions Packet with a patient, it was her customary
practice to consult with the nursing supervisor on duty
regarding the patient's ability to review the packet, and
also to call the resident's contact person in order to
determine if the resident was capable of completing his or
her own paperwork. If either the patient's contact person
or nursing supervisor was of the opinion that the patient was
unable to complete the Admissions Packet, Ms. Marwell-Bussick
averred that she would stop this process and schedule a
meeting with the patient's contact person. Additionally,
she stated that she never began reviewing the Admissions
Packet with patients prior to 9:00 am.
the patient's contact person and nursing supervisor did
not assert that the patient was unable to complete their own
paperwork, Ms. Marwell-Bussick stated that it would have been
her usual practice to sit with the patient and converse with
them for a time before eventually going over the Admissions
Packet. Notably, Ms. Marwell-Bussick testified that it was
important that no one else be in the room during this
process, and thus she would have been the only person
discussing the Admissions Packet with Ms. Fonseca. Ms.
Marwell-Bussick further explained that she was taught by her
former supervisor to explain to the patient that signing each
document was voluntary, meaning the patient could
"always change their mind." Ms. Marwell-Bussick
also represented that after explaining what each portion of
the Admissions Packet meant to a patient, she would fill in
the pertinent information on each page of the Admissions
Packet herself- based on how the patient responded to her
explanations of each section of the packet- and subsequently
have the patient sign at the end if they chose to.
Furthermore, Ms. Marwell-Bussick testified that she would
have followed this exact procedure with Ms. Fonseca on
September 12, 2013, although she could not specifically
remember doing so; she merely averred that this would have
been her normal practice, and noted that some of the
handwriting referenced in the packet was her own, which
suggests that she went through her customary routine.
Martel testified that he was the live-in partner of Ms.
Baker. He had no medical training and did not witness Ms.
Fonseca sign any documents, nor did he meet Ms.
Marwell-Bussick. Because of his relationship with Ms. Baker,
Mr. Martel became familiar with Ms. Fonseca's normal
demeanor and behavior. Prior to her injury which led to her
admission to the Pawtucket Center, Mr. Martel testified that
Ms. Fonseca could walk around on her own and wore glasses
regularly for reading. He further testified that he visited
Ms. Fonseca at the Pawtucket Center on September 12, 2013
after he got out of work-somewhere between 4:00 PM and 5:00
PM. According to Mr. Martel, Ms. Fonseca appeared
"run-down" and was drifting in and out of
consciousness. He averred that her behavior was not normal,
noting that she repeatedly referred to him by her son's
name, Tony, and also that she was frequently asking for pain
medication. He stated that she appeared disoriented and
confused, and overall was "not herself."
Baker testified that she lived with her mother for part of
her adult life, and once she began to live on her own, would
visit her three or four times per week. Ms. Baker had no
medical or legal training. She testified that her mother was
a former licensed practical nurse who stopped working in 2007
after undergoing surgery for a heart transplant. Ms. Baker
said that she visited her mother on September 12, 2013 after
work-between approximately 5:00 PM and 7:00 PM. She was not
involved in the completion of any of the admission paperwork,
nor did she ever see any such paperwork. Further, Ms. Baker
did not speak with Ms. Marwell-Bussick, a nurse, or a doctor
at the Pawtucket Center regarding her mother's admission.
When asked about Ms. Fonseca's state, Ms. Baker testified
that her mother was sleeping on an off for most of her visit,
and at times would ask for personal items such as her
cellular phone or personal hygiene products. Overall,
however, Ms. Baker stated that her mother could not hold a
steady conversation and "was not herself." She also
asserted that her mother frequently expressed that she was in
pain, and further that she was concerned that her mother had
been overly medicated. Ms. Baker also testified that her
mother wore glasses in 2013- primarily for reading-but that
she was not wearing those glasses when Ms. Baker visited her.
She noted that Ms. Fonseca's glasses were in her
pocketbook when she visited her on September 12, 2013, which
suggests that Ms. Fonseca had not been wearing them at any
point that day.
Sparadeo is a Clinical Neuropsychologist who specializes in
brain disorders and behavioral relationships. He received a
Post Doctorate degree from Brown University in
Neuropsychology and Pain Management, and purported to be a
member of several medical associations. Dr. Sparadeo is
currently an adjunct professor of Psychopharmacology at Salve
University, and formerly held a similar position at Brown
University. His work in Neuropsychology has been published,
and he routinely presents his work at both national and
international conferences. Dr. Sparadeo has been appointed in
the past at Rhode Island Hospital, St. Joseph's Hospital,
and Our Lady of Fatima Hospital, where he, inter
alia, evaluated the cognitive status of elderly
patients. Currently, Dr. Sparadeo practices in traumatic
brain injury and pain management and specifically assesses
patients-mostly people over forty years of age-for cognitive
impairment. He has participated as an expert witness in many
cases in the past-including in arbitration and mediation
settings-both in Rhode Island and in other states. Dr.
Sparadeo was offered and accepted as an expert in Clinical
Sparadeo's expert opinion and to a reasonable degree of
medical certainty, Ms. Fonseca did not possess the cognitive
ability to understand the Arbitration Agreement at the time
she signed it. Since Dr. Sparadeo never met Ms. Fonseca, he
formed his opinion on the totality of her medical
history-specifically relying on medical records he was
provided from Tufts Medical Center and the Pawtucket
Center-as well as from the perceptions of Ms. Fonseca's
family regarding her abnormal behavior on September 12, 2013.
See Tuft's Medical Center Discharge Summary,
Pls.' Ex. 3. From those records, Dr. Sparadeo
determined that Ms. Fonseca possessed an increased risk of
cognitive impairment based on her past medical history;
specifically, her history of cardio disease (including a
heart transplant), chronic kidney disease, and a brain
aneurism. He also noted that the fact that Ms. Fonseca
suffered a fall at Tufts Medical Center on September 6, 2013
after failing to call for help-despite reminders to do
so-indicated that she was suffering from cognitive
Sparadeo additionally explained that there were five domains
of cognition: attention/concentration, learning/memory,
language, visual/perceptual, and reasoning/executive
function. Based on her medical records, Dr. Sparadeo averred
that Ms. Fonseca was more likely than not experiencing
cognitive impairments in three of these domains:
attention/concentration, visual/perceptual, and
reasoning/executive function, and opined that this would have
affected her ability to read and understand the Arbitration
Agreement at the time she signed it.
Sparadeo further formed his opinion of Ms. Fonseca's
cognitive status on September 12, 2013 by reviewing her
medication record. Of the bevy of medications Ms. Fonseca was
taking, at least four of them affected brain function:
Amitriptyline, Ativan, Gabapentin,  and Oxycodone. See
Pawtucket Center Physician Admission Orders, Pls.' Ex.
11. While overall the dosages of these medications given to
Ms. Fonseca were average-and Dr. Sparadeo conceded on
cross-examination that none of them were hallucinogenic and
that medicine affects people in different ways-some common
side effects he noted were confusion, headaches,
disorientation, memory difficulty, dizziness, mood changes,
and sleepiness. In general, Dr. Sparadeo asserted that the
combination of these drugs would have slowed Ms.
Fonseca's cognitive processing and caused her to be
confused-especially considering her advanced age. He also
suggested that the fact that she indicated she was in serious
pain would have further distracted her. See
Occupational Therapy Initial Evaluation, Defs.' Ex. A6.
Additionally, Dr. Sparadeo considered the deposition
testimony of both Ms. Baker and Brian Martel in forming his
opinion, and noted that Ms. Fonseca's behavior as
described by both of them-such as her sleepiness and
confusion-was consistent with that of a person afflicted with
cognitive impairment. Such behavior also suggests that her
medications were affecting her cognitive status at that time.
specifically considering the Arbitration Agreement, Dr.
Sparadeo testified that people experiencing cognitive
impairment-as he believes Ms. Fonseca was on September 12,
2013-have more trouble understanding the kind of formal
language contained in the Arbitration Agreement. Furthermore,
in his opinion, the Pawtucket Center did not adequately
evaluate Ms. Fonseca's cognitive function prior to
presenting the Admissions Packet to her. Thus, in Dr.
Sparadeo's opinion, Ms. Fonseca could not have understood
the Arbitration Agreement she signed on September 12, 2013 as
her attention, concentration, executive functioning and
judgment all appear to have been impaired. Moreover, after
reading the deposition ...