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19-P-125 Appeals Court
KENNETH F. ATCHUE, personal representative,1 vs. BENCHMARK
SENIOR LIVING LLC, & another.2
No. 19-P-125.
Worcester. November 5, 2019. - October 5, 2020.
Present: Rubin, Wolohojian, & Henry, JJ.
Assisted Living Residence. Practice, Civil, Discovery,
Amendment of complaint, Moot case, Motion to dismiss,
Statute of limitations, Survival of action. Evidence,
Production on demand. Due Process of Law, Statute of
limitations. Limitations, Statute of. Survival of Action.
Civil action commenced in the Superior Court Department on
June 1, 2018.
A motion to dismiss was heard by Francis E. Flannery, J.
1 Of the estate of Mary T. Atchue. After this case was
fully briefed and shortly after argument, Atchue died. The
defendants filed a motion to dismiss the appeal based on the
plaintiff's death. Subsequently, we allowed the motion to
substitute the personal representative of the plaintiff's
estate. See Mass. R. A. P. 30 (a), as appearing in 481 Mass.
1661 (2019). We refer to the original plaintiff, Mary T.
Atchue, throughout this opinion.
2 B-X Worcester, LLC, doing business as Tatnuck Park at
Worcester.
2
Thomas B. Farrey, III, for the plaintiff.
Joseph M. Desmond for the defendants.
HENRY, J. Mary T. Atchue brought a complaint for discovery
-- a seldom used equitable remedy -- to ascertain how she
sustained a broken foot and contusions, possibly while being
transferred by aides at an assisted living facility owned and
operated by the defendants. She appeals from a judgment
dismissing her complaint without explanation. The defendants
contend that the matter is now moot, either because the statute
of limitations on Atchue's potential negligence claim has
expired and a complaint for negligence would be time barred or
because Atchue has died. We conclude that the matter is not
moot. Accepting as true, as we must, Atchue's allegation in her
complaint that she believed that she had a claim for negligence
but required the requested documents to assess the viability of
that claim, we conclude that it was error to dismiss her
complaint in these narrow circumstances: she demonstrated an
actual injury while in the care of others, she seeks to discover
records of her own care, and she asserts that she needs such
3
records to assess the viability of her potential claim.3
Accordingly, we vacate the judgment of dismissal.
Factual background. We accept the factual allegations of
the complaint as true, as well as any reasonable favorable
inferences drawn from them. See Security Coop. Bank v. McMahon,
294 Mass. 399, 403-404 (1936) (taking allegations in bill in
equity as true). See also Zizza v. Zizza, 456 Mass. 401, 402
n.3 (2010); Chang v. Winklevoss, 95 Mass. App. Ct. 202, 204
(2019).
On December 19, 2015, while in her unit of an assisted
living facility known as Tatnuck Park at Worcester, Atchue fell
while being transferred by aides and was injured, sustaining a
broken foot and contusions. Her family repeatedly requested
that the defendants provide copies of all reports concerning the
accident. An employee of the defendants has acknowledged the
existence of records concerning the accident. The defendants
agree that they have not produced these reports.
Prior to filing her complaint for discovery, Atchue's
counsel sent the defendants a G. L. c. 93A demand letter, which
is attached to the complaint, alleging that she fell while
"aides were transferring [her] without using a gait belt, in
3 To the extent a person is forced to litigate to get such
records, they should not be compelled to assert a cause of
action seeking damages, too.
4
contravention of [the defendants'] own care plan." This was not
the end of the exchange between the parties, however. The
defendants responded by disputing any liability and particularly
disputing (1) that Atchue fell (defendants say her legs gave out
and aides assisted her to the ground), (2) that Atchue's care
plan required aides to use a gait belt when transferring her,
and (3) that Atchue broke her foot during this incident when
aides assisted her to the ground.
The records are in the exclusive possession of the
defendants, and Atchue is the subject of the records. She
alleged that she "believes that she has a viable claim for
negligence against [the defendants] and/or their agents,
servants or employees," but that she "requires the information
contained in the incident report and other requested documents
in order to assess the viability of her claim." Atchue was
elderly at the time of the incident, and it is unclear whether
she may have had cognitive impairments that prevented her from
understanding or conveying to others what, exactly, happened.
Based on the fact that this was an assisted living facility, as
well as statements that family members were acting on her behalf
by requesting the records and handling her billing, it also is
reasonable to infer that Atchue may not have been able to
identify the specific aides or negligent acts that caused her
injuries.
5
Atchue's complaint for discovery seeking the production of
documents was docketed on June 1, 2018, and it was dismissed on
November 8, 2018. Atchue filed her notice of appeal on December
3, 2018.
Discussion. 1. Bills for discovery. Historically, a bill
for discovery came within the "ancillary jurisdiction of the
equity court" and could be maintained "to aid the plaintiff in a
suit which he intend[ed] immediately to bring, as well as in a
suit already brought, if the bill disclose[d] a cause of action"
(citation omitted). Wolfe v. Massachusetts Port Auth., 366
Mass. 417, 419 (1974). The bill for discovery could be brought
to help a party determine the correct party to sue, see, e.g.,
id. at 422; to obtain evidence in support of an action already
brought, see, e.g., MacPherson v. Boston Edison Co., 336 Mass.
94, 103 (1957); or to obtain evidence in support of an action
not yet brought, see, e.g., Backlund v. General Motors Corp.,
352 Mass. 776, 776 (1967).4 Since the enactment of simpler,
statutory procedures for obtaining discovery, "[t]here are few
instances in which [bills for discovery] continue[] to have any
practical significance." MacPherson, supra at 100. However,
4 The practice of using a bill for discovery to obtain
evidence in support of an action not yet brought has been
established in other States. See, e.g., Berger v. Cuomo, 230
Conn. 1, 5-11 (1994); Shorey v. Lincoln Pulp & Paper Co., 511
A.2d 1076, 1077-1078 (Me. 1986).
6
the Supreme Judicial Court has made clear that statutory
remedies have not supplanted the bill for discovery and that the
bill instead supplements those remedies. See, e.g., Wolfe,
supra at 419 n.1 ("[t]he rules [of civil procedure] do not
eliminate the 'independent action against a person not a party
for production of documents and things and permission to enter
upon land'" [citation omitted]).5 Thus, when a bill seeks
discovery alone, discovery is available "where the statutory
procedure[s] [are] inadequate to obtain the necessary
information, and . . . where the information sought could have
been obtained under a pre-1851 bill for discovery." MacPherson,
supra. In deciding whether to grant such discovery, a judge
should bear in mind the "'limited purpose' for which [a bill for
discovery] provides a 'practical and reasonable' discovery
procedure and that the relief granted is within these
parameters." Wolfe, supra at 422, quoting MacPherson, supra at
105.
2. Mootness. We first address the defendants' argument
that this matter is now moot either because of the statute of
limitations such that a complaint for negligence would be time
Wolfe was decided after the Massachusetts Rules of Civil
5
Procedure became effective on July 1, 1974, but the new rules
were not applicable to the case. See Wolfe, 366 Mass. at 419
n.1.
7
barred or because Atchue has died. As a general rule, courts do
not decide moot cases. Branch v. Commonwealth Employment
Relations Bd., 481 Mass. 810, 816 (2019), cert. denied sub nom.
Branch v. Massachusetts Dep't of Labor Relations, 140 S. Ct. 858
(2020). "[L]itigation is considered moot when the party who
claimed to be aggrieved ceases to have a personal stake in its
outcome" and where a court thus cannot order any further
effective relief. Id. at 816-817, quoting Bronstein v. Board of
Registration in Optometry, 403 Mass. 621, 627 (1988).
a. Statute of limitations. The defendants argue that the
statute of limitations for negligence claims expired on the
three-year anniversary of Atchue's fall, while this appeal was
pending. See G. L. c. 260, § 2A. The defendants further
contend that if Atchue can no longer bring a negligence claim,
her complaint for discovery is moot because she no longer has a
personal stake in obtaining the requested documents. Atchue
does not dispute that the statute of limitations for negligence
claims is three years and instead argues that if she is
permitted, on remand, to amend her complaint for discovery to
add a negligence claim, that negligence claim would relate back
to when she filed her complaint for discovery. We agree.
When a new claim asserted in an amended pleading arises
"out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the
8
amendment . . . relates back to the original pleading." Mass.
R. Civ. P. 15 (c), 365 Mass. 761 (1974). Atchue's complaint
alleged that she fell while being transferred by aides at her
assisted living facility. To the extent that Atchue seeks to
amend her complaint to add a claim for negligence arising out of
that very fall, we have no trouble concluding that such a claim
would arise out of the occurrence set forth in the original
pleading. See Cimino v. Milford Keg, Inc., 385 Mass. 323, 333
(1982) (new emotional distress claim arose out of same car
accident that gave rise to original wrongful death claim).
Contrast Weber v. Community Teamwork, Inc., 434 Mass. 761, 784-
785 (2001) (new retaliation claim, for employer's refusal to
provide reference letter after plaintiff filed complaint with
Massachusetts Commission Against Discrimination, did not relate
back to plaintiff's original claims, which arose out of her
termination).6
6 While the defendants do not raise the argument, we note
that there is no basis for us to conclude that, as a matter of
law, a complaint for discovery cannot be amended to add a
substantive claim. See Etienne v. Oyake, 347 F. Supp. 2d 215,
220-222 (D.V.I. 2004) (treating discovery action as complaint,
amendment allowed as of right). See also Surface v. Town of Bay
Harbor Islands, 625 So. 2d 109 (Fla. Dist. Ct. App. 1993)
(labeling complaint as bill of discovery not bar to amendment
adding statutory cause of action). Nor is there any basis for
us to conclude that a complaint seeking equitable relief cannot
be amended to include a claim at law. See Senior Hous. Props.
Trust v. HealthSouth Corp., 447 Mass. 259, 268 n.24 (2006) ("If
a complaint seeking only equitable relief is later amended to
9
Through the relation back doctrine, Atchue offers a
feasible means by which her potential negligence claim is not
barred by the statute of limitations. Remand is appropriate in
these circumstances. Cf. Gonzalez v. Commissioner of
Correction, 407 Mass. 448, 453 (1990) (where class action
improperly certified because issue had become moot as to named
plaintiffs, "better course" was to remand to see if someone else
would seek to be admitted as class representative); Dwyer v.
Globe Newspaper Co., 367 Mass. 910, 911 (1975) (due to
developments in law occurring after case was on appeal, justice
"best served" by remanding with instructions that plaintiff
could file motion to amend). Any prejudice to the defendants is
for the judge to weigh on remand. See Cimino, 385 Mass. at 333.7
seek money damages, a jury demand as to the legal issue may then
be made").
7 We recognize that Atchue also may be able to argue that
the statute of limitations was equitably tolled, although we
acknowledge that the doctrine is sparingly used. See Shafnacker
v. Raymond James & Assocs., 425 Mass. 724, 728 (1997) (equitable
tolling sparingly used doctrine generally limited to instances
of excusable ignorance, defective pleading, or misconduct by
defendant [quotations and citations omitted]). Compare
Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 446
(1996) ("a statute of limitations may be tolled . . . by reason
of the employer having caused the employee to delay acting,
i.e., an equitable estoppel"); Cherella v. Phoenix Techs. Ltd.,
32 Mass. App. Ct. 919, 920 (1992) (where defendant "encourages
or cajoles the potential plaintiff into inaction, that conduct
may be a basis of extending the limitations period as matter of
equity"). We do not reach this issue.
10
b. Survival of complaint after death. Nor is this matter
moot as a result of Atchue's death. At common law, contract
actions survived the death of a party, while tort actions did
not. Kraft Power Corp. v. Merrill, 464 Mass. 145, 150 (2013).
The Legislature has since enacted the survival statute, G. L.
c. 228, § 1, to expand the common-law rule. See Kraft Power,
supra. Pursuant to that statute, and as relevant here, actions
of tort "for assault, battery, imprisonment or other damage to
the person" now survive death. G. L. c. 228, § 1 (2) (a).
There is no doubt that Atchue's potential negligence claim for
her foot injury would fall within the survival statute as a tort
for damage to the person. The defendants argue, however, that
her complaint for discovery is neither a contract action that
survives death under common law nor one of the enumerated tort
actions that survive death under G. L. c. 228, § 1. We
disagree. See Harrison v. Loyal Protective Life Ins. Co., 379
Mass. 212, 215 (1979) ("[I]t is plain from the structure and
language of the statute that the Legislature did not intend to
give an exhaustive list of torts which would survive and thereby
to imply that those not so listed must abate upon death as they
had at common law. On the contrary, the Legislature intended to
abrogate the common[-]law nonsurvival rule by virtue of a
flexibly drawn statute which gives a partial listing of torts
that should survive followed by the broad phrase 'or other
11
damage to the person.' This phrase clearly leaves room to
accommodate other torts which the court might deem to involve
damage to the person. Thus the statute is sufficiently dynamic
to allow for a change in judicial conceptions of what types of
harm constitute legally redressable 'damage to the person'").
Accord Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165,
179 (2013).
Moreover, the defendants' argument overlooks the fact that
a complaint for discovery is an equitable remedy in aid of an
action at law. We discern no reason why, where the
administrator of an estate has the ability to pursue an action
at law on behalf of a decedent, the administrator of the estate
would not have the same ability as the decedent to obtain
prelawsuit discovery through a complaint for discovery. See
generally Reynolds v. Burgess Sulphite Fibre Co., 71 N.H. 332
(1902). We thus conclude that whether a complaint for discovery
survives death turns on whether the underlying action at law
survives death. See, e.g., Moore v. Backus, 78 F.2d 571, 576-
577 (7th Cir.), cert. denied, 296 U.S. 640 (1935) (where
plaintiff's underlying claim survived his death, so too did his
bill for discovery). Because Atchue's potential negligence
claim survives her death, so too does her complaint for
discovery.
12
3. Motion to dismiss. Having concluded that this matter
is not moot, we turn to the merits of the defendants' motion to
dismiss. Prior to receiving the complaint for discovery and in
response to requests made by Atchue by letter, the defendants
produced 870 pages of documents, but the defendants did not
produce the key documents that were always the focus of Atchue's
requests, the incident reports for the incident in question.
The sole basis asserted in the defendants' motion to dismiss was
that Atchue's complaint for discovery did not comply with Mass.
R. Civ. P. 27 (a), as amended, 423 Mass. 1401 (1996), which
concerns prelawsuit depositions. This argument fails for the
simple reason that Atchue was not seeking a deposition pursuant
to rule 27. She was instead seeking the production of
documents, and only documents, pursuant to a complaint for
discovery, an alternative common-law equitable remedy that was
not supplanted by the Massachusetts Rules of Civil Procedure.
See Wolfe, 366 Mass. at 419 ("rather than supplanting the bill
of discovery, statutory remedies are supplemented by it").
The proper inquiry is whether the rules of civil procedure
were "inadequate to obtain the necessary information," and
whether Atchue's complaint for discovery complied with
applicable common-law requirements. MacPherson, 336 Mass. at
100. In addressing this question, we note that the judge did
not hold a hearing on the merits of Atchue's document requests
13
and that, according to the docket, the motion appears to have
been decided under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754
(1974).8 We do not address whether, after a hearing on the
merits of the document requests, it would have been an abuse of
discretion for the judge to deny the requests, as that issue is
not before us. See Shorey v. Lincoln Pulp & Paper Co., 511 A.2d
1076, 1078 (Me. 1986) (in case involving bill for discovery,
usual rule of reviewing for abuse of discretion did not apply
where "presiding justice failed to exercise any discretion
because he erroneously concluded that he lacked the power to
grant the relief sought by the plaintiff").
It is undisputed that Atchue had an injury -- a broken foot
and contusions. Taking her allegations as true and drawing all
reasonable inferences in her favor, however, she did not know
whether she had a viable claim for negligence and she did not
know who was aiding her when she fell. Thus, as is true in
other cases involving bills for discovery, the plaintiff alleged
a specific and definite injury and requested discovery to
determine whether the defendants' negligence caused that injury
and whom she might sue. See, e.g., MacPherson, 336 Mass. at 95
8 The docket describes the motion as a "12 (b) motion to
dismiss." The only subsection of rule 12 (b) that applies to
the defendants' arguments is rule 12 (b) (6) for failure to
state a claim. As noted above, the motion judge did not explain
why he allowed the motion to dismiss.
14
(plaintiff, who came into contact with high voltage wire owned
by defendant, brought bill for discovery to inspect wires). The
defendants counter that this equitable remedy was not available
to Atchue because she did know the factual basis for her
potential negligence claim and that she thus could have filed
that claim and then sought discovery pursuant to the
Massachusetts Rules of Civil Procedure.9 The defendants point to
the fact that Atchue, prior to filing her complaint for
discovery, sent the defendants a G. L. c. 93A demand letter.
This was not the end of the exchange between the parties,
however. The defendants responded by disputing all liability.
The defendants' argument thus ignores the fact that, having
completely denied any liability, they were attempting to
dissuade Atchue's counsel from filing an action, asserting that
there was no good ground to support Atchue's claim. Atchue
alleged that she needed certain documents about her own care to
assess the viability of a negligence claim, that the requested
documents were in the exclusive possession of the defendants,
9 The approach suggested by the defendants could run afoul
of Mass. R. Civ. P. 11 (a), as amended, 456 Mass. 1401 (2010)
("The signature of an attorney to a pleading constitutes a
certificate by him . . . that to the best of his knowledge,
information, and belief there is a good ground to support it.
. . . For a wilful violation of this rule an attorney may be
subjected to appropriate disciplinary action").
15
and that she had no other means of obtaining them. Accepting
these allegations as true, as we must, it is reasonable to infer
that Atchue needed the requested documents -- specific documents
about the precise incident at issue -- to see if they supported
the defendants' version of events.10 See, e.g., Backlund, 352
Mass. at 776 (viewing petition to examine allegedly defective
piece of machinery as bill for discovery in aid of possible
action at law against manufacturer, no abuse of discretion in
granting requested relief). These are the precise set of
circumstances in which a complaint for discovery is an available
means of relief. See Wolfe, 366 Mass. at 419. This was not a
fishing expedition between commercial competitors. Atchue
suffered a concrete injury, possibly through negligence, and
asserted that she needed the records to assess the viability of
that potential claim. The complaint for discovery complied with
common-law requirements, and there was no adequate remedy under
the rules of civil procedure for requesting such documents.
The defendants also contend that Atchue's complaint for
discovery does not meet the requirement of "address[ing] a
10In reaching this conclusion, we are particularly mindful
that we do not know the extent to which Atchue was able to
describe what happened and how it happened. We also note that
the defendants do not argue the availability of other prelawsuit
procedures by which Atchue could have tried to obtain the
documents.
16
'limited purpose' for which it provides a 'practical and
reasonable' discovery procedure."11 Wolfe, 366 Mass. at 422,
quoting MacPherson, 336 Mass. at 105. We are mindful that a
complaint for discovery should not be used to obtain discovery
to fish for a potential claim, and we assume without deciding
that this equitable remedy should be used sparingly and only
when there is a known injury. Here, as noted above, Atchue did
suffer an injury and sought only specific documents about the
precise incident in question to see if they supported what she
believed to have occurred -- that she fell while being
transferred by aides.12 Regardless, the scope of Atchue's
11The defendants raise this argument in the context of
suggesting that we could affirm on the alternative basis of
undue burden, but the defendants have not provided -- either
here or below -- any information regarding the scope of
responsive documents or how burdensome it would be for them to
produce those documents. This argument may be raised at a
hearing on the merits of Atchue's document requests. See Wolfe,
366 Mass. at 422 ("At a hearing on the merits of the bill [for
discovery, the defendant] may object to discovery of
confidential or excessively numerous documents. The trial
judge, in his discretion, may then dismiss the bill or order
discovery in whole or in part").
12As we have noted, the plaintiff, an elderly woman living
in an assisted living facility, allegedly fell while being
transferred by aides and sought reports related to that precise
incident. Whether it was in that fall or otherwise, she
demonstrated unexplained injuries -- a broken foot and
contusions. This was not a fishing expedition that lacked a
factual or legal basis. See, e.g., Pitts v. Wingate at
Brighton, Inc., 82 Mass. App. Ct. 285, 289-292 (2012) (jury
reasonably could have concluded, without aid of expert
17
document requests goes to the merits of her complaint for
discovery. See Wolfe, supra. Atchue's complaint for discovery,
however, never reached that stage. The judge never held a
hearing on the merits of the document requests and instead
dismissed Atchue's complaint for the production of documents.
This was error.
The defendants raise two other arguments. First, relying
on more recent cases in which bills for discovery were brought
against third parties, the defendants argue that Atchue's
complaint for discovery fails because it was brought against the
very entities likely to be named as defendants in Atchue's
proposed litigation. But, historically, bills for discovery
were typically brought against parties to the proposed
litigation. See MacPherson, 336 Mass. at 103-104. It was the
exception that bills for discovery were permitted against third
parties. See id. at 104.
Second, the defendants argue that the requested documents
are privileged work product. There is no basis in the record
for us to affirm on this ground. The defendants never produced
a privilege log or any other pertinent information that would
have allowed the judge below, or this court on appeal, to assess
testimony, that plaintiff's injuries were caused by fall while
being transferred by nursing home aides).
18
the merits of the defendants' objections to Atchue's document
requests. See Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs.,
Inc., 449 Mass. 609, 619 (2007) (party asserting work product
has burden to show privilege applies).13
Conclusion. The judgment is vacated, and the matter is
remanded for further proceedings consistent with this opinion.
So ordered.
13As with the defendants' argument regarding undue burden,
the work product argument may be raised in a hearing on the
merits of the document requests. See note 11, supra.