United States Court of Appeals
For the First Circuit
No. 00-1357
AARON NETT, by and through his mother
and next best friend, ROBIN NETT,
and ROBIN NETT and JAMES NETT, Individually,
Plaintiffs, Appellants,
v.
MITCHELL J. BELLUCCI, M.D.;
PETER D. GROSS, M.D.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Kenneth M. Levine, with whom Annenberg & Levine was on brief,
for appellants.
Michael J. Racette, with whom Bruce R. Henry, and Morrison,
Mahoney & Miller, LLP. were on brief, for appellees.
October 12, 2001
* Judge Bownes heard oral argument in this matter, and participated in
the semble, but he did not participate in the drafting or the issuance
of the panel's opinion. The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C. § 46(d).
LIPEZ, Circuit Judge. This appeal arises from a medical
malpractice lawsuit alleging negligent prenatal care and injuries
sustained by Aaron Nett during his delivery on April 2, 1992. The Netts
filed suit against the obstetrician, Mitchell Bellucci, M.D., on April
30, 1996. When the Netts discovered that the problems during delivery
stemmed, at least in part, from the erroneous reading of an ultrasound
by radiologist Peter Gross, M.D., they filed a motion for leave to amend
their complaint to include him as a defendant on March 10, 1999. The
Netts filed their amended complaint on April 26, 1999. In between these
two filings, the time during which the Netts could commence an action
against Dr. Gross under Massachusetts' seven-year statutes of repose
expired, and the district court dismissed their claim against Dr. Gross
on that basis. Because it is unclear, under Massachusetts law, whether
the filing of a motion for leave to amend constitutes the commencement
of the action for the purpose of the statutes of repose, or, as the
district court held, the amended complaint itself must be filed within
the statutory period, we certify, on our own motion, this question and
a related question to the Supreme Judicial Court of Massachusetts (SJC).
I.
On April 2, 1992, Aaron Nett was born at the Milford-
Whitinsville Hospital in Milford, Massachusetts, weighing more than
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eleven pounds.1 Due to his large size, a condition called macrosomia,
Aaron's delivery was difficult and he sustained a nerve injury to his
shoulder. Mitchell Bellucci, M.D., delivered Aaron and, based upon an
ultrasound performed a week earlier, did not anticipate the
complications. Michael Gross, M.D., was the radiologist who performed
and interpreted the ultrasound on March 26, 1992, estimating the fetal
weight to be eight pounds.
1 Because of the importance of the dates in this matter, we offer
the following timeline to summarize the dates set forth in the Part I
narrative:
March 26, 1992: Dr. Gross performed the prenatal ultrasound.
April 2, 1992: Aaron Nett is born.
April 30, 1996: The Netts filed their complaint against Dr.
Bellucci alleging negligent medical care.
March 10, 1999: The Netts filed the initial motion for leave to
amend to include Dr. Gross.
March 19, 1999: The Netts served Dr. Gross with the motion for
leave to amend.
March 29, 1999: The Netts refiled the motion for leave to amend
in compliance with the local rules.
March 31, 1999: Dr. Gross filed an opposition to the plaintiffs'
motion to amend.
April 8, 1999: The district court granted the motion for leave
to amend by handwritten note, assigning a due
date of April 19, 1999 for the amended complaint.
April 26, 1999: The Netts filed their amended complaint.
May 13, 1999: Dr. Gross filed a motion to dismiss the amended
complaint because it was not timely filed.
July 21, 1999: The court rejected Dr. Gross's motion.
September 16, 1999: Dr. Gross filed a motion for reconsideration of
the district court's denial of the motion to
dismiss the complaint.
January 21, 2000: The court reversed its prior ruling, granting Dr.
Gross's motion for reconsideration and dismissing
the amended complaint.
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On behalf of her son, Robin Nett filed suit against Dr.
Bellucci on April 30, 1996, asserting the obstetrician's negligence in
the provision of prenatal care and in Aaron's delivery. Specifically,
the Netts contended that Aaron's macrosomia derived from an undiagnosed
case of gestational diabetes, for which Dr. Bellucci should have tested
Mrs. Nett earlier in the pregnancy. In addition, the parents, Robin and
James Nett, claimed loss of parental consortium.
During discovery, the plaintiffs attempted to obtain the
ultrasound film from the hospital, initially serving a subpoena duces
tecum on June 30, 1998. The hospital responded that the film had been
destroyed. Despite plaintiffs' request, Dr. Gross also failed to
produce the ultrasound film at his deposition on August 4, 1998, stating
that in response to his inquiry to the manager of the hospital's file
room he had been told the film was no longer available. Finally, on
February 4, 1999, in response to a second subpoena duces tecum, the
hospital recovered the film and forwarded it to the plaintiffs.
The trial date was scheduled for May 24, 1999. On March 10,
1999, the Netts filed their initial motion for leave to file an amended
complaint to include Dr. Gross as a defendant. The amended complaint
itself was not attached to the motion to amend, but the motion was
accompanied by a ten-page memorandum which included a detailed summary
of the facts of the case and indicated that the Netts intended to allege
that Dr. Gross negligently misread the ultrasound taken one week prior
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to Aaron's birth, and that this error contributed to the complications
at delivery. The memorandum also identified a medical expert who held
the opinion that Dr. Gross had been negligent in reading the ultrasound.
Dr. Gross, in his opposition to the motion to amend, which he filed
before the Netts had filed their amended complaint, rebutted the
plaintiffs' memorandum point by point.
However, in filing their motion to amend, the plaintiffs
failed to comply with Massachusetts District Court Local Rule 15.1,
which requires the service of "the motion to amend upon the proposed new
party at least ten (10) days in advance of filing the motion." Local
Rule 15.1(B). Local Rule 15.1 was adopted by the District Court of
Massachusetts to comply with the Expense and Delay Reduction Plan of the
District of Massachusetts, which sought to prevent the rampant late
addition of parties that "inevitably delays the case and generated
unnecessary procedural litigation."2 By requiring that parties who will
be added to an action through an amended complaint be served with the
motion to amend prior to filing the motion with the court, those parties
2 Local Rule 15.1 --Addition of New Parties-- was drawn from
Article III of the Plan, Rule 3.02. The local rule was intended to
supplement Federal Rule of Civil Procedure 15, which deals with amended
pleadings. As the Reporter's Notes to the local rule amendments
emphasize: "Rule [15.1] is not designed to undermine the liberal
amendment policy of Federal Rule of Civil Procedure 15, but to provide
some guidance as to when leave to amend should be 'freely given' and to
encourage the early addition of parties."
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would be able to respond more quickly to the motion to amend when it was
filed.
Although the local rule also requires that a certificate of
service be included in the filing of the motion to amend, there is no
evidence that the clerk of the court rejected the initial filing. After
discovering their omission, the plaintiffs, of their own accord, served
Dr. Gross with the motion for leave to amend their complaint, as well
as a motion to extend time, on March 19, 1999. In compliance with the
local rule, these motions were then refiled with the court on March 29,
1999. Again, the plaintiffs did not include the proposed amended
complaint with these motions. Dr. Gross opposed the plaintiffs' motion
for leave to amend the complaint, arguing undue delay and prejudice
(with no reference to the statute of repose issue). The court granted
the plaintiffs' motion on April 8, 1999, giving them until April 19,
1999, to file the amended complaint. They did not file that complaint
until April 26, 1999.
On May 13, 1999, Dr. Gross filed a motion to dismiss the
amended complaint, arguing that the plaintiffs' claims were barred by
the state's seven-year statutes of repose. See Mass. Gen. Laws ch. 231,
§ 60D;3 Mass. Gen. Laws ch. 260, § 4.4 The ultrasound was performed and
3 The statute governing Aaron Nett's cause of action reads:
[A]ny claim by a minor against a health care provider
stemming from professional services or health care rendered,
whether in contract or in tort, based on the alleged act,
omission or neglect shall be commenced within three years
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interpreted on March 26, 1992. Therefore, Dr. Gross argued, the filing
of any amended complaint adding him as a defendant after March 26, 1999,
must be disallowed because the claim had been extinguished after that
date.
On July 21, 1999, the court denied the motion to dismiss.
Exercising its discretion under Local Rule 1.3,5 the court concluded:
This Court, after considering the policies
underlying Local Rule 15.1 and the statutes of
repose, concludes that the plaintiffs' failure to
comply with that Local Rule was harmless. It will
therefore excuse the violation and deem the motion
to amend the complaint to have been properly filed
on March 10, 1999.
Finding that the motion seeking leave to amend would have been filed
prior to the expiration of the repose period but for the violation of
from the date the cause of action accrues, except that a
minor child under the full age of six years shall have until
his ninth birthday in which the action may be commenced, but
in no event shall any such action be commenced more than
seven years after occurrence of the act or omission which is
the alleged cause of the injury upon which such action is
based.
Mass. Gen. Laws ch. 231, § 60D.
4 The statute governing the parents' loss of consortium claim
reads: "Actions of contract or tort for malpractice, error or mistake
against physicians . . . shall be commenced within three years after
the cause of action accrues, but in no event shall any such action be
commenced more than seven years after the occurrence of the act or
omission which is the alleged cause of injury upon which such action is
based." Mass. Gen. Laws ch. 260, § 4.
5 Local rule 1.3 reads: "Failure to comply with any of the
directions or obligations set forth in, or authorized by, these Local
Rules may result in dismissal, default, or the imposition of other
sanctions as deemed appropriate by the judicial officer."
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Local Rule 15.1, the court ruled that "the time that elapsed between the
filing of the motion to amend [March 10, 1999] and the filing of the
amended complaint [April 26, 1999] is tolled for the purpose of the
applicable statutes." In making this ruling, the court apparently
concluded that only the filing of the amended complaint itself, rather
than the filing of any motion to amend, would constitute the
commencement of an action for the purpose of the statutes of repose.
Dr. Gross filed a motion for reconsideration of the denial of
the motion to dismiss. In his memorandum in support of the motion, Dr.
Gross urged the court to "more fully address the issue of the
determination of the date of 'commencement' of the Plaintiffs' action"
and challenged the court's authority to toll the running of the statutes
of repose in this case. In reevaluating its decision, the court wrote:
Although the Court originally permitted a tolling
of the statute of repose between the filing of the
motion for leave to amend the complaint (March 10,
1999) and the filing of the amended complaint
(April 23, 1999)6, . . . such tolling of a statute
of repose was improper. The plaintiffs did not
file a claim against Dr. Gross before the period
of repose expired and therefore any such claim had
already been irretrievably extinguished.
The claim against Dr. Gross was dismissed on January 21, 2000.
II.
6The actual date on which the Netts filed the amended complaint
was April 26, 1999.
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The district court had diversity jurisdiction in this matter
pursuant to 28 U.S.C. § 1332, requiring it to apply the substantive law
of Massachusetts. See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938);
Catex Vitol Gas, Inc. v. Wolfe, 178 F.3d 572, 576 (1st Cir. 1999). The
Massachusetts laws at issue have been deemed statutes of repose. See
McGuinness v. Cotter, 591 N.E.2d 659, 663 (Mass. 1992). Although the
Massachusetts courts have not explicitly characterized the repose
statutes as substantive law, Cosme v. Whittin Machine Works, Inc., 632
N.E.2d 832, 834 (Mass. 1994) ("[S]tatutes of repose are not clearly
procedural. . . ."), "[a] mass of authority treats statutes of repose
as substantive rather than procedural." Pinkham v. Collyer Insulated
Wire Co., No. 92-0426B, 1994 U.S. Dist. LEXIS 21490 at *17-*18 (D.R.I.
1994) (citing cases to support a finding that "[a] mass of authority
treats statutes of repose as substantive rather than procedural"); see
also Romani v. Cramer, Inc., 992 F. Supp. 74, 76 (D. Mass. 1998)
("[S]tatutes of repose are substantive in nature under federal law.");
Alves v. Siegel's Broadway Auto Parts, Inc., 710 F. Supp. 864, 869 (D.
Mass. 1989) (reasoning that the Massachusetts courts would find statutes
of repose to be substantive in nature because they "relate to the very
existence of the cause of action itself."). We agree with this
analysis.
Therefore, pursuant to the law of Massachusetts, we must
answer two questions: (1) when did the statutes of repose begin to run;
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(2) when did the Netts commence their action against Dr. Gross for the
purpose of the statutes of repose. The answer to the first question is
easy. The answer to the second question is more elusive.
A. Triggering the Statutes of Repose
The plaintiffs claim that the repose period commenced on
April 2, 1992, the date of Aaron Nett's injury at birth. Furthermore,
the Netts argue that the repose period could not commence prior to
Aaron's birth because he could not bring an action against Dr. Gross
until his birth. The defendants contend that the repose period began
when the allegedly negligent act was performed, meaning the day that the
ultrasound was performed and interpreted.
The plain language of the statutes of repose resolves these
competing contentions. The controlling date for the commencement of the
repose period is the date of the "occurrence of the act or omission
which is the alleged cause of the injury upon which such action is
based." Mass. Gen. Laws ch. 231, § 60D. Indeed, the statutory period
conspicuously "is not related to the accrual of any cause of action."
Klein v. Catalano, 437 N.E.2d 514, 516 (Mass. 1982); see also Tindol v.
Boston Hous. Auth., 487 N.E.2d 488, 490 (Mass. 1986). Given the clarity
of the statutory language, and the confirmation of its import by the
Massachusetts courts, the triggering date for the statute of repose
period in this case is March 26, 1992, the date of the ultrasound
performed by Dr. Gross.
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B. Commencement of the Action
Massachusetts law is clear on the unforgiving nature of a
statute of repose. "The effect of the statute of repose is to place an
absolute time limit on the liability of those within its protection and
to abolish a plaintiff's cause of action thereafter." McGuinness 591
N.E.2d at 662; see also Protective Life Ins. Co. v. Sullivan, 682 N.E.2d
624, 634 n.19 (Mass. 1997). "Unlike a statute of limitations, which
bars a cause of action if not brought within a certain time period, a
statute of repose prevents a cause of action from arising after a
certain period. The bar of a statute of repose is absolute." James
Ferrera & Sons, Inc. v. Samuels, 486 N.E.2d 58, 61 (Mass. App. Ct. 1985)
(citations omitted); see also Klein, 437 N.E.2d at 516 (stating that
after the repose period expires, the action is "completely
eliminate[d]"); Plummer v. Gillieson, 692 N.E.2d 528, 531 (Mass. App.
Ct. 1998) ("[T]he language of the statute is plain and unambiguous.").7
Massachusetts courts have concluded that "[f]airness demands that a
7 The Legislature intended the rigid requirements of the statute
of repose. See Plummer, 692 N.E.2d at 530; Klein, 437 N.E.2d at 520
In Franklin v. Albert, 411 N.E.2d 458 (Mass. 1980), the Supreme
Judicial Court held that an action for medical malpractice does not
accrue until patients learn or should have learned of the harm they
suffered. Id. at 459-60. Remarking on the policy basis for Mass. Gen.
Laws ch. 231, § 60D, the Plummer court stated: "In order to counter the
effect of [the Franklin] decision on the cost of malpractice insurance
and its resulting effect on the cost of health care, the Legislature
amended the applicable statute of limitations for medical malpractice
claims for both minors and adults by adding a statute of repose . . .
." 692 N.E.2d at 530.
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defendant at some time should be secure in the knowledge that the slate
has been wiped clean." Tindol, 487 N.E.2d at 490 (quotations omitted).
Sensitive to these precedents, the district court concluded
in its ruling on the motion for reconsideration that it had
impermissibly tolled the Massachusetts statutes of repose by allowing
the motion to amend filed by the Netts on March 10, 1999 to stop the
running of the seven-year statutory period until the Netts could file
their amended complaint against Dr. Gross on April 26, 1999, more than
seven years after Dr. Gross performed the prenatal ultrasound on March
26, 1992. There is an unstated premise in this ruling -- that the
filing of the motion for leave to amend the complaint to add a party
does not constitute the commencement of the action for the purpose of
the statutes of repose; instead, the amended complaint itself must be
filed after court approval of the motion to amend to meet the
commencement requirement of the statutes of repose. If this unstated
premise is incorrect, and if Massachusetts law would treat the March 10,
1999 motion for leave to amend as the commencement of the action against
Dr. Gross for the purpose of the statutes of repose, then the district
court may have erred in ruling that only the filing of the amended
complaint itself against Dr. Gross would commence the action for the
purpose of the statutes of repose.
We turn to that commencement of the action question,
explaining further why we look to the law of Massachusetts for the
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answer. In Walker v. Armco Steel Corp., 446 U.S. 740, 752 (1980), the
Supreme Court held that "in diversity actions Rule 3 [of the Federal
Rules of Civil Procedure on commencement of the action] governs the date
from which various timing requirements of the Federal Rules begin to
run, but does not affect state statutes of limitations." Id. at 751.
More specifically, Walker held that a federal court sitting in diversity
should adhere to state procedural (service) requirements integral to the
state law (statute of limitations) so long as there is no federal rule
directly on point. Id. at 752-53; see also Ragan v. Merchants Transfer
& Warehouse Co., 337 U.S. 530, 533-34 (finding that the state statute
of limitations that requires service to commence an action controls
rather than Fed. R. Civ. P. 3); 4 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1057 (2d ed. 1987) (discussing
commencement of actions in diversity cases involving statutes of
limitations). This holding has been reiterated by other courts of
appeals. "[T]he Federal Rules of Civil Procedure determine the date
from which various timing requirements begin to run. They do not,
however, affect the commencement of a lawsuit. Rather, state
commencement rules apply." Larsen v. Mayo Med. Ctr., 218 F.3d 863, 867
(8th Cir. 2000) (involving timeliness of a malpractice action under the
state statute of limitations) (citations omitted). Given the close
kinship between statutes of limitations and statutes of repose, this
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reliance on state law to resolve action commencement issues raised by
state statutes of limitations also applies to state statutes of repose.
Massachusetts law, however, is unsettled on the specific
point of whether the filing of the motion for leave to amend the
complaint to add a party or the filing of the amended complaint itself
after approval of the motion to amend by the court constitutes the
commencement of the action for the purpose of the statutes of repose.
In Tindol, the SJC considered whether the allowance by the trial court
of a motion to amend adding defendants to a previously filed complaint
complied with the action commencement requirement of the applicable
statute of repose. See 487 N.E.2d at 489-90. Throughout the decision
the analysis of compliance focuses on the date that the motion to amend
was filed. See id. However, because the motion to amend in Tindol was
itself filed after the statutory period had expired, the specific
question that must be decided here was not posed.
Because we have found no controlling precedent on the
question of what constitutes the commencement of an action for the
purpose of the Massachusetts statutes of repose, and this question may
be determinative of the Netts' cause of action against Dr. Gross, we
elect to certify the question to the Supreme Judicial Court of
Massachusetts. See Kansallis Finance Ltd. v. Fern, 40 F.3d 476, 481
(1st Cir. 1994) (certifying a question of Massachusetts law to the SJC
in the absence of controlling precedent); Mass. S.J.C. R. 1:03
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(accepting certified questions which may be claim-determinative if there
is no controlling SJC precedent).
We also need to certify a second question, contingent upon
the SJC's response to our first question, concerning the effect of the
Netts' violation of Local Rule 15.1. In its initial decision denying
Dr. Gross's motion to dismiss, the district court concluded that the
Netts' failure to comply with Local Rule 15.1 was harmless, in light of
the policies underlying the local rule and the statutes of repose, and
deemed the motion to amend filed on March 10, 1999 effective for the
purpose of tolling the statutes of repose, without considering whether
the motion to amend itself could constitute the commencement of the
action against Dr. Gross for the purpose of the statutes of repose. In
its subsequent reconsideration of that ruling, the court shifted its
focus from the motion to amend to the filing of the amended complaint,
ruling that the motion to amend could not toll the statutes of repose
and that only the filing of the amended complaint satisfied those
statutes. If the SJC were to conclude that the filing of the motion for
leave to amend could constitute the commencement of the action for the
purpose of the statutes of repose, we would have to consider the effect
on that motion of the violation of local rules applicable to the filing
of such motions. Therefore, in the event that the SJC concludes that
the action can commence with the filing of the motion to amend, we
request further guidance as to whether the policies underlying the
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Massachusetts statutes of repose require that the motion to amend be
filed in strict compliance with local rules of court applicable to the
filing of such motions, or whether courts have discretion to excuse non-
compliance with such local rules without running afoul of the statutes
of repose.
CERTIFICATION
For the reasons stated in our opinion in this case, we
certify the following two questions to the Supreme Judicial Court of
Massachusetts:
(1) Is the operative date for commencement of an action for
purposes of the Massachusetts statutes of repose the date of
filing of a motion and supporting memorandum for leave to
amend a complaint to add a party (assuming timely service),
or is the operative date the date the amended complaint is
filed after leave of court is granted, when leave of court is
required by the Rules of Civil Procedure to file an amended
complaint?
(2) If the answer to Question No. 1 is that the operative
date is the date of filing of the motion for leave to amend,
do the policies underlying the statutes of repose require
that such filings be in compliance with the local rules of
court applicable to the filing of such motions, or do those
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policies permit the court in its discretion to excuse non-
compliance with the local rules?
This court certifies that these questions may be determinative of a
cause of action in this case and that it appears there is no controlling
precedent in the decisions of the Supreme Judicial Court. We would also
welcome any additional observations about relevant Massachusetts law the
SJC may wish to offer. The clerk of this court is to forward, under the
official seal of this court, seven copies of the certified questions and
our opinion in this case, along with the briefs and appendix filed by
the parties, to the Supreme Judicial Court of Massachusetts. We shall
await its reply with interest and appreciation. In the interim, we
retain appellate jurisdiction. We note that the parties have not
briefed to this court the two questions certified, and we recommend that
the Supreme Judicial Court receive additional briefing.
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