United States District Court, N.D. New York
November 17, 2004.
JOHN R. CAIOLA, Plaintiff,
BERKSHIRE MEDICAL CENTER, INC.; BERKSHIRE HEALTH SYSTEMS; LINDA M. PERRY, M.D.; ILLEGIBLE ER MEDICAL RESIDENT; and JAMES M. WHEELER, P.A.; Defendants.
The opinion of the court was delivered by: DAVID HOMER, Magistrate Judge
MEMORANDUM-DECISION AND ORDER
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.
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.
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 to comply, but a court may not require a
plaintiff to post a bond for expenses should he or she not
prevail at trial.
The primary purposes of Rule 16 and the Massachusetts law are
different. The purpose of Rule 16 is to manage pre-trial
proceedings to increase the efficiency and flexibility of the
federal courts and simplify the issues. The purpose of the
Massachusetts law is to reduce malpractice insurance premiums.
While these statutes overlap, there is not necessarily a direct collision. Because there is no federal rule
sufficiently in conflict with the Massachusetts law, the question
becomes whether Erie dictates the application of the
B. Erie v. Tompkins
In Erie, the Supreme Court established the general principle
that in diversity cases federal courts must apply state
substantive law and federal procedural rules. Hogan v. Wal-Mart
Stores, Inc., 167 F.3d 781, 783 (2d Cir. 1999). To determine
whether a particular law is substantive or procedural, an
outcome-determinative test may be applied by which "the outcome
of the litigation in the federal court should be substantially
the same, so far as legal rules determine the outcome of a
litigation, as it would be if tried in a State court." Guaranty
Trust Co. v. York, 326 U.S. 99, 109 (1945). However, the
outcome-determinative test cannot be mechanically applied and
other relevant factors must be considered. Byrd v. Blue Ridge
Rural Elec. Coop., 356 U.S. 525, 538 (1958). To determine
whether rules and laws are substantive or procedural, several
tests may be used drawn from the policies underlying the Erie
rule. Hanna v. Plummer, 380 U.S. 460, 467 (1965). The
application of Erie must be guided by "the twin aims of the
Erie rule: discouragement of forum-shopping and avoidance of
inequitable administration of the laws." Hanna, 380 U.S. at 471
(1965). In addition, federal courts must analyze state and
federal interests in making a determination as to which
particular rules should be applied. Byrd, 356 U.S. at 538;
Alisandrelli v. Kenwood, 724 F. Supp. 235, 237 (S.D.N.Y. 1989).
Caiola would not be required to submit proof to the medical
malpractice tribunal or post a bond if the Massachusetts law were not applied. The
Massachusetts law does not completely bar the entire action but
places requirements on plaintiffs who do not prevail at the
tribunal. This rule creates a substantive liability for costs in
the amount of a bond. If the plaintiff fails to post a bond, the
suit is dismissed. Although not always outcome-determinative,
this law may have a significant effect on the outcome of the
litigation if the plaintiff does not prevail at the tribunal and
fails to post a bond, which would require dismissal of the claim.
The application of federal law does not necessarily lead to a
substantially different result if the plaintiff posts the bond.
While the main action would take the same course, the
Massachusetts law creates a new liability on the part of the
plaintiff that does not exist in federal courts.
Failure to apply the Massachusetts law would indeed encourage
forum-shopping by out-of-state plaintiffs or out-of-state
defendants on Massachusetts medical malpractice claims.
Plaintiffs would be more likely to bring such claims in federal
court under diversity to avoid the tribunal procedure and the
bond requirement. Plaintiffs have an obvious interest in avoiding
the screening procedure and bond requirement.
Not applying the Massachusetts law would result in the
inequitable administration of the law. A defendant sued in
federal court would lose the protection and right to recovery of
costs simply because of the fortuity of the diversity of
citizenship of the parties. In addition, failure to apply the
Massachusetts statute in diversity actions would undermine
Massachusetts' efforts to curb the insurance costs that spurred
the passage of the statute. This result would be inconsistent
with the aims of Erie and there is no overriding federal policy
to prevent application of the Massachusetts law. Thus, the
interest in uniformity of outcome by applying the state rule in
medical malpractice actions outweighs any burden imposed by the bond requirement, a conclusion consistent with
cases in the First Circuit. See Joseph v. Sweet,
125 F. Supp. 2d 573 (D. Mass. 2000); Turner v. Sullivan,
937 F. Supp. 79 (D. Mass. 1996); Wilde v. Franklin City Pub.
Hosp., No. 84-0179-F, 1985 U.S. Dist. LEXIS 12962, at *3 (D. Mass
Dec.10, 1988); Pallazolla v. Rucker, 602 F. Supp. 459
(D. Mass. 1985); Lange v. Breslin, Civ. No. 84-2382-MA,
1984 U.S. Dist. LEXIS 22187, at *1 (D. Mass. Nov. 6, 1984); Byrnes v.
Kirby, 453 F. Supp. 1014 (1978).
Accordingly, under Erie, the Massachusetts law applies,
defendants' request is granted, and this matter shall be referred
to a medical malpractice tribunal in accordance with Mass. Gen.
Law ch. 231, § 60B.
C. Stay of Discovery
Defendants also seek a stay of discovery in this action pending
completion of the proceedings before the tribunal. Under
Fed.R.Civ. P. 26(c), a district court may grant a stay of discovery
upon a showing of good cause. Spencer Trask Software & Info.
Servs., LLC v. Rpost Int'l Ltd., 206 F.R.D. 367, 368 (S.D.N.Y.
2002); In re Currency Conversion Fee Antitrust Litigation, No.
MDL, 1409, M21-95, 2002 WL 88278, at *1 (S.D.N.Y. Jan 22, 2002).
Good cause "requires a showing of facts militating in favor of
the stay." American Booksellers Ass'n v. Houghton Mifflin Co.,
No. 94 Civ. 8566(JFK), 1995 WL 72376, at *1 (S.D.N.Y. Feb. 22,
A stay is not automatic, however, even where a potentially
dispositive motion is pending. See Spencer Trask Software &
Info. Servs., LLC, 206 F.R.D. at 268. Rather, the determination
of good cause for a stay requires examination of the facts of
each case, including the likelihood that the case will be resolve
in an alternate or parallel proceeding, the breadth of discovery, the burden of responding to discovery, and
any prejudice to the party opposing the stay or others. In re
Currency Conversion Fee Antitrust Litigation, 2002 WL 88278, at
Here, the tribunal proceedings appear unlikely to resolve this
case and do not prohibit any party from proceeding with the
litigation of this action. Thus, it remains reasonably certain
that this case will proceed through discovery, motions and trial
whatever the outcome of the tribunal proceedings. The breadth of
discovery here will likely approximate that of other medical
malpractice cases, involving the production of medical records,
the depositions of the parties and possibly several non-parties,
and expert discovery. There is no reason to believe that the
burden of responding to this discovery will be obviated by the
tribunal proceedings. Thus, defendants are unlikely to achieve
any reduction in the costs associated with this case if a stay is
Finally, the tribunal proceedings appear protracted. The
parties estimated during the conference on November 2, 2004 that
the tribunal proceedings would be completed in no less than six
months and were more likely to take up to two years. The
guideline for completion of cases in this district is eighteen
months. See N.D.N.Y. Gen. Order Civil Case Management Plan at
¶ 5 (Jan. 18, 2004). This guideline serves the purpose stated by
Congress in the Civil Justice Reform Act (CJRA),
28 U.S.C. §§ 471-82, that "promptitude in the completion of pretrial
proceedings in civil cases is to be given priority." Wilson v.
Oxford Health Plans, No. 01 CIV. 3417(MHD), 2002 WL 1770813, at
*3 (S.D.N.Y. July 31, 2002). Thus, staying discovery here would
cause significant prejudice both to Caiola and to the public
interest articulated by Congress in the CJRA, that this case
proceed promptly to resolution. Weighing and balancing these factors, then, the conclusion is
compelled that in the circumstances presented here, good cause
for a stay has not been established. Accordingly, defendants'
request for a stay is denied and the case shall proceed according
to the schedule established in the Uniform Pretrial Scheduling
Order filed November 4, 2004 (Docket No. 15).
WHEREFORE, for the reasons set forth above, it is hereby
1. Defendants' request for an order referring this matter to a
medical malpractice tribunal pursuant to Mass. Gen Laws ch. 231,
§ 60B is GRANTED; and
2. Defendants' request for a stay of discovery pursuant to
Fed.R. Civ. P. 26(c) is DENIED.
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