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.
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 ...