Opinion
No. 98-1569
August 3, 2000
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS' MOTION TO RECONSIDER
This is a tort action in which the plaintiffs seek to recover damages for the wrongful death of their son, Jack Diresta, based on the alleged medical malpractice of the defendant Dr. Sudler. The plaintiffs allege that Dr. Sudler was negligent in failing to deliver baby Jack by Cesarean section in light of his size, what is alleged to be evidence that he had developed acute chorioamnionitis during labor, and what is alleged to be evidence that he had developed fetal intolerance to a hostile uterine environment. The matter came before the court on the plaintiffs' motion to vacate a judgment of dismissal entered by the clerk on July 10, 2000 in accordance with Mass.R.Civ.P. 33(a), paragraph 4. After reviewing the plaintiffs' motion to vacate judgement and the defendants' opposition, the court denied the plaintiffs' motion. The plaintiffs then filed a Motion to Reconsider. For the reasons which follow, reconsideration is DENIED.
A hearing was conducted on the defendant's motion to reconsider because it was captioned by the plaintiff as an "Emergency" motion and therefore within the exception set forth in Superior Court Rule 9A(e). The defendant Sudler argued that the motion should have been presented to the court first before a hearing was scheduled. See Superior Court Rule 9D (A hearing is held on motions for reconsideration only after the motion has first been presented to and reviewed by the court). He further argues that the Motion for Reconsideration should not be considered at all because it does not bring anything new to the court's attention and thus does not qualify as a Motion for Reconsideration. Because a hearing was conducted, there is no need to rule on these points.
BACKGROUND
The essential facts are not in dispute. The complaint was filed in August, 1998, along with a Statement of Damages under Superior Court Rule 29. The Civil Action Cover Sheet indicates that the case was assigned to the "A" Track. See Standing Orders of the Superior Court, Second Amended Standing Order 1-88(B). An answer was filed by defendant Sudler in September, 1998. A Medical Malpractice Tribunal hearing was conducted on November 13, 1998. The plaintiffs submitted an offer of proof that contains medical and hospital records relating to mother and child as well as a letter by an expert, Dr. William Dillon. On November 14, 1998, the Tribunal filed its decision concluding that the evidence, if substantiated, was sufficient to raise a legitimate question of liability.
Meanwhile, in October, 1998, the defendant Sudler served the plaintiffs with interrogatories. Numerous extensions of time were granted to the plaintiffs to answer these interrogatories. In May of this year, a final extension of time was granted to the plaintiffs to file their answers by May 15, 2000 because depositions of the plaintiffs, which also had been continued several times, were scheduled to take place in early June, 2000.
At the hearing on the defendant's Motion for Reconsideration, neither party offered any details about the exact number of extensions of time that were granted or the circumstances. However, the plaintiffs did not dispute the defendant Sudler's characterization that they were "numerous."
On or about May 5, 2000, plaintiffs' counsel called counsel for defendant Sudler and informed him that a draft copy of the answers to interrogatories could be sent over that afternoon or a signed copy would be delivered within one week. Defense counsel elected the second option, and thus had an expectation that he would receive the signed copy within one week. Twenty-six days later, on May 31, 2000, defendant's counsel sent a letter to plaintiff's counsel reminding him that the signed answers to interrogatories had not yet arrived. See Exhibit A to the Defendant Sudler's Opposition to Plaintiff's Motion to Vacate (hereafter, "Opposition"). Thereafter on June 2, 2000, not having received a response to this letter, defendant Sudler's counsel filed an Application for Dismissal under Mass.R.Civ.P. 33(a). Opposition, Exhibit B. Plaintiffs' counsel concedes that he received notice of the application filed by the defendant Sudler. A Re-Application for Dismissal under Mass. R.Civ.P. 33(a) was filed by counsel for defendant Sudler more than 30 days later on July 7, 2000. Since no answers to the interrogatories were then on file, the clerk entered a judgement of dismissal as required by the rule.
In their Motion for Reconsideration, plaintiffs include an affidavit of their attorney, Mr. William J. Thompson, in which he states that "[a]t no time between service of the Application and filing of the re-Application did counsel for Dr. Sudler ever contact me to inquire as to the status of the answers." Plaintiff's Motion for Reconsideration, Exhibit F. However, counsel for defendant Sudler challenged this assertion at the motion hearing in this case and counsel for the plaintiffs conceded that his affidavit was not accurate. Counsel for the plaintiffs stated that by "contact" he meant a telephone call. Indeed, after filing the application for dismissal on June 2, 2000, counsel for the defendant Sudler, who was under no obligation to notify counsel for the plaintiffs, faxed and mailed a letter to attorney Thompson in which he stated: "If we do not receive the plaintiffs' Answers to Interrogatories within 30 days of the date of the Rule 33(a) Application, which we served on the plaintiffs on or about June 2, 2000, we will file a Re-Application for Dismissal pursuant to Rule 33(a)." Opposition, Exhibit D. There was no response from plaintiffs' counsel. Furthermore, the Answers to the Interrogatories were not filed. Counsel for Defendant Sudler sent a second letter to plaintiffs' counsel on June 27, 2000 reminding him that the Answers to Interrogatories had not been received. Opposition, Exhibit F.
In their original motion to vacate the judgment of dismissal, the plaintiffs' counsel relies principally on two grounds. First, he states that the delay and tardiness in filing answers to interrogatories was excusable because the plaintiffs are living apart, considering a legal separation, under great stress due to the death of their son, and difficult to reach. He also indicates that he was engaged in a trial in the Suffolk Superior Court from June 21st to June 30th. See Plaintiff's Motion to Vacate at 2. He also states the plaintiffs finally completed their review and revisions to the Interrogatories and have signed their answers which have been provided to the defendant Sudler and filed with the court. See Plaintiff's Motion to Vacate at 2-3 and Exhibits A B.
Plaintiffs' counsel relies on general assertions contained in his motions. No details have been supplied by affidavit or otherwise of particular difficulties that plaintiffs' counsel has encountered with his clients especially in the period from May-July, 2000.
DISCUSSION
A. The Plaintiffs Have Failed to Demonstrate Grounds Warranting the Exercise Of the Court's Discretion to Vacate the Order of Dismissal or for Reconsideration
In Piepul v. Bryson, 41 Mass. App. Ct. 932, 932-33 (1996), the Appeals Court observed that "[r]ule 33(a) is neither obscure nor unfamiliar: interrogatories are to be answered within forty-five days. Step one of the application for a final judgment for failure to answer within forty-five days is a routine event. Parties are then on notice that, unless the court orders otherwise the interrogatories must be answered within the next thirty days or the machinery which produces final judgment may begin to engage in earnest. A posture of relaxation at that point is perilous, however much the day-to-day culture among lawyers tends toward a relaxed attitude about the rigors of the rules." Here, as in Piepul, the plaintiffs were on notice that the defendant Sudler had begun the process of applying for a judgment of dismissal, but they failed to make a timely and appropriate response either by requesting an enlargement of time in which to file the answers or simply by filing the answers. Morever, in the present case, the delay between the filing of interrogatories and the application for dismissal was far greater (18 months) than the delay in Piepul (only five months). Finally, the delay in the present case was punctuated by inquiries from defendant Sudler's counsel and a warning that a re-application would be filed.
The perilousness of inattention to an Application for Dismissal under Mass.R.Civ.P. 33(a) is underscored by a reference contained in the Reporter's Notes to Mass.R.Civ.P. 33 which describe the automatic dismissal feature of Rule 33(a) as a "guillotine."
In Greenleaf v. Massachusetts Bay Transportation Authority, 22 Mass. App. Ct. 426 (1986), in a different but analogous context, the Appeals Court had occasion to review an order of the Superior Court establishing the defendant's liability as a sanction under Mass.R.Civ.P. 37(b)(2) for its failure to respond to a request for the production of documents for more than one year. The Appeals Court noted that "[t]he considerations to be balanced in deciding a default question for failure to make discovery are, on the one hand, a concern about giving parties their day in court, and, on the other, not so blunting the rules that they may be ignored `with impunity.'" Id. at 429-30. With regard to the second factor, there was nothing that favored the MBTA's position. The Appeals Court observed that the MBTA had failed to make any effort to secure clarification of or relief from the discovery order, and had engaged in a pattern of "consistent slipshod reaction" treating the discovery rules "as a paper tiger." Id. at 430. The conduct of counsel for the plaintiffs in the present case is similarly dismissive of the procedural requirements for conducting discovery and preparing for trial.
With regard to the parties' interest, it must be noted that the mere fact that the plaintiffs' answers were filed promptly following the Rule 33(a) dismissal does not serve to cure the default that led to the judgement of dismissal. See Kalenderian v. Marden, 46 Mass. App. Ct. 930 (1999) (rescript). Nonetheless, a prompt effort to cure the default that led to the imposition of a sanction is a factor that should be considered in assessing the plaintiffs' interest in having their day in court. Here, however, the conduct of the plaintiffs does not suggest good faith. As pointed out by defendant Sudler, several of the plaintiffs' answers indicate that after more than 18 months since being served with interrogatories they are still searching for information about loss of income and other economic losses. Opposition, exhibits G H (Answers 9, 11). Also, answers to other legitimate questions about the nature of the emotional injury or distress suffered by the plaintiffs are either omitted or incomplete. Opposition, exhibits G H (Answers 10, 13, 22 23). Moreover, in response to an interrogatory requesting the identity of those with knowledge of facts on which their claims are based and the facts that these people have knowledge of, the plaintiffs simply list the identity of 14 people without any reference to the connection each may have to their claims. Opposition, exhibits G H (Answer 17). See Partlow v. Hertz, Corp., 370 Mass. 787, 790 (1970) ("Compliance with the rules of civil procedure is not accomplished if the parties make of answers to interrogatories some kind of a game"). Contrast, Broome v. Broome, 40 Mass. App. Ct. 148, 152-53 (1996) (In circumstances in which a party failed to comply with Rule 33(a) during a time in which she was not represented by counsel but promptly cured the default and in light of the fact that the controversy related to child support, the sanction of dismissal was too drastic).
Upon a consideration of both respect for the rules of procedure and the interest of the plaintiffs in having their day in court, I conclude, in the exercise of my discretion, that relief from dismissal is not warranted.
B. The Discovery Period Under the Tracking Order Applicable to This Case
Does not Suspend the Operation of Mass.R.Civ.P. 33(a)
The time for completing discovery in this case under the Tracking Order does not expire until October, 2000. See Standing Orders of the Superior Court, Second Amended Standing Order 1-88(E)(ii)(4) (In cases assigned to the "A" Track, all discovery requests are to be served and depositions completed within twenty-six months). The plaintiffs suggest that because the discovery deadline had not yet passed granting the relief requested is appropriate. There is nothing inconsistent between Standing Order 1-88, as amended, and Mass.R.Civ.P. 33(a). The schedule established by the Tracking Order does not expressly or impliedly suspend the terms of any discovery sanctions provided for in the rules of civil procedure.
Plaintiffs suggest further that because the discovery deadline is not until October, 2000, and can be extended beyond that, the defendant Sudler has not been prejudiced. Putting aside the disagreement between the parties on this point, Mass.R.Civ.P. 33(a) is unambiguous in its avoidance of a cause and prejudice approach to the imposition of the sanction of dismissal.
ORDER
For the above reasons, the Plaintiffs' Emergency Motion for Reconsideration is DENIED.
____________________ Peter W. Agnes, Jr. Associate Justice