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November 17, 2004.

JOHN R. CAIOLA, Plaintiff,

The opinion of the court was delivered by: DAVID HOMER, Magistrate Judge


Plaintiff John Caiola ("Caiola") commenced this diversity action against defendants alleging medical malpractice for treatment rendered at Berkshire Medical Center ("Berkshire") in Massachusetts. Presently pending is defendants' request for an order referring this matter to a medical malpractice tribunal required under Massachusetts law and to stay discovery until the tribunal is convened and issues its findings. Caiola opposes these requests. For the reasons which follow, defendants' requests are granted in part and denied in part.

  I. Background

  On February 16, 2002, Caiola cut his right hand on a jagged piece of sheet metal at his home in Columbia County, New York and was treated at Berkshire. Compl. (Docket No. 1) at ¶¶ 17, 18, 20. Caiola's injury was sutured and diagnosed as a laceration. Id. at ¶ 21. On February 21, 2002, Caiola returned to the Berkshire emergency room with complaints of pain and a large lump near the sutured wound. Id. at ¶ 22. Defendants James Wheeler and Linda Perry, M.D. instructed Caiola to continue current treatment and return in five days for removal of the sutures. Id. at ¶ 23.

  Caiola visited his primary care physician on February 26 and March 7, 2002 with complaints of swelling to the sutured area. Compl. at ¶ 25. Caiola was referred to an orthopedist for a consultation. Id. at ¶ 24. The orthopedist diagnosed Caiola's injury as a laceration of the tendons of the right wrist and stated that surgery was the only possibility to gain full extension of the wrist. Id. at ¶ 25. On April 24, 2002, surgery was performed on Caiola's right hand to repair the tendons. Id. at ¶ 27. Caiola alleges that as a result of defendants' delay in the proper diagnosis and treatment of his injury, the tendons on his right hand developed scar tissue and could not be properly reattached. Compl. at ¶¶ 60-63. Caiola alleges that he does not have full strength in his right hand, experiences pain and discomfort, and is impaired from performing his occupation. Id. at ¶ 78.

  II. Discussion

  A. Rules Enabling Act

  The Rules Enabling Act provides that the Supreme Court has the "power to prescribe general rules of practice and procedure . . . [of the] district courts" and these rules "shall not abridge, enlarge, or modify any substantive right." 28 U.S.C. § 2072 (a)-(b) (1994). Any state laws that conflict with such federal rules shall have no force or effect. 28 U.S.C. § 2072 (b); Willy v. Coastal Corp., 503 U.S. 131, 134 (1992). When a federal procedural rule is valid, on point, and covers the point in dispute in a diversity case, the federal rule controls. Hanna v. Plummer, 380 U.S. 460, 468 (1965); Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 27 (1988); Sewell v. Jones, 95-CIV-6224(SAS), 1996 U.S. Dist. LEXIS 9192, at *2 (S.D.N.Y. July 3, 1996).

  The scope of a federal procedural law covers the point in dispute if it is "sufficiently broad" to cause a "direct collision" with the state law or if it controls the issue before the court, thereby leaving no room for operation of the state law. Burlington N.R.R. Co. v. Woods, 480 U.S. 1, 5 (1987); Morse v. Elmira Country Club, 752 F.2d 35, 38-39 (2d Cir. 1984); Argentina v. Emery World Wide Delivery Corp., 167 F.R.D. 359, 361-62 (E.D.N.Y. 1996). Federal rules should be interpreted "with sensitivity to important state interests and regulatory policies" and not with a "broad reading that would create a significant dis-uniformity between state and Federal courts." Gasperini v. Ctr. for Humanities, 518 U.S. 415, 427 n. 7 (1996); Stewart Org, 487 U.S. at 37-38. The federal rules are not "to be narrowly construed in order to avoid a `direct collision' with state law [and] should be given their plain meaning." Walker v. Armco Steel Corp., 446 U.S. 740, 750 (1980). State law falling outside the scope of a federal rule requires courts to ask whether conflicting laws are substantive or procedural. Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 168 (E.D.N.Y. 2001).

  Here, defendants assert that the Massachusetts state law which requires medical malpractice actions to be heard by a tribunal before proceeding is a substantive rule of law and must be applied by this court in accordance with the Rules of Decision Act and the Erie doctrine. Erie v. Tompkins, 304 U.S. 64 (1938). Plaintiff argues that Rule 16 of the Federal Rules of Civil Procedure covers the point in dispute and, therefore, prohibits application of the Massachusetts law.

  In Massachusetts, a plaintiff who does not prevail before the medical malpractice tribunal is required to post a bond in the amount of six thousand dollars in order to proceed to trial. Mass. Gen. Laws ch. 231, § 60B (2004). The tribunal consists of a single justice of the Superior Court, and a physician and an attorney authorized to practice in the Commonwealth. Id. If the plaintiff does not then prevail at trial, the court will assess costs against the plaintiff, including the defendant's attorneys', witness, and expert fees. Mass. Gen. Laws ch. 231, § 60B; Turner v. Sullivan, 937 F. Supp. 79, 80 (D. Mass. 1996). The primary purpose of this section is to "guarantee the continued availability of medical malpractice insurance" at reasonable premiums and to discourage frivolous claims whose defense would tend to increase insurance premiums. Brodie v. Gardner Pierce Nursing & Rest Home, Inc., 9 Mass. App. Ct. 639, 641 (Suffolk 1980); Feinstein v. Massachusetts Gen. Hosp., 643 F.2d 880, 881 (1st Cir. 1981).

  This statute does not expressly require that the parties submit to the tribunal before a court can consider any of their claims or defenses. However, a party who does not submit proof to the tribunal must post a bond. Bohl v. Leibowitz, 1 F. Supp. 2d 67, 71 (D. Mass. 1997) (quoting Doyle v. Shubs, 717 F. Supp. 946, 947 (D. Mass. 1989)).The tribunal is designed to assess the sufficiency of the evidence and has no power to consider legal defenses or statutory bars to recovery. Bohl, 1 F. Supp. 2d at 71. Upon motion of either party, a judge has the discretion to reduce or increase the amount of the bond but may not eliminate the requirement completely. Feinstein, 643 F.2d at 881.

  The tribunal's function is to evaluate the evidence offered by plaintiff in the manner in which a judge presiding at a civil trial would do in ruling on a defendant's motion for directed verdict. Feinstein, 643 F.2d at 881 (quoting McMahon v. Glixman, 379 Mass. 60, 62 (1979)). Admissible evidence includes hospital and medical records, x-rays, and statements of fact or opinion from a published treatise, periodical, book or pamphlet. Mass. Gen. Laws ch. 231, § 60B. A plaintiff may waive the malpractice tribunal by declining to present any offer of proof and filing a bond with the court, but in that case, a judge may assume that the claim is frivolous and increase the amount of the bond. Denton v. Beth Israel Hosp., 392 Mass. 277, 278 (1984). If the tribunal decides in a defendant's favor and the plaintiff fails to file the bond, the action must be dismissed with prejudice. Mass. Gen. Laws ch. 231, § 60B; Farese v. Connolly 422 Mass. 1010, 1010 (1996). Caiola contends that Seck v. Hamrang, 657 F. Supp. 1074 (S.D.N.Y. 1987), and Burlington Northern R.R. Co. v. Woods, 480 U.S. 1 (1987), compel a finding that the Massachusetts law is not applicable to this case. Seck v. Hamrang held that a New York medical malpractice screening panel requirement directly conflicted with Fed.R. Civ. P. 16. The purpose of both laws was to aid in the settlement of pending lawsuits and to "facilitate the disposition of medical malpractice action," thereby infringing the broad power of Rule 16 to control and fashion techniques for settlement. Seck, 657 F. Supp. at 1075; Treyball v. Clark, 65 N.Y.2d 589, 590 (1985). In Burlington, an Alabama statute was held in direct conflict with Rule 38 of the Federal Rules of Appellate Procedure, which granted the federal appellate courts the authority to impose monetary penalties for frivolous appeals. Unlike the case here, the state law's purpose and effect in these cases was clearly the same as the federal procedural law, causing "direct collision" and requiring application of the federal rule.

  Fed.R. Civ. P. 16 does not directly collide with the Massachusetts medical malpractice statute. While Rule 16 gives a federal court the broad power to regulate pre-trial proceedings, it does not require a pretrial determination of sufficiency or that a bond be posted to cover a defendant's costs. A court retains the power to take appropriate action to formulate and simplify the issues, eliminate frivolous claims, and assess sanctions for failure ...

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