Petition for Writ of Certiorari — Tucker v. Metrowest Medical Center

Supreme Coun, U.S.

FILE

Ok 155 AUG - 2 2004

No. OFFICE OF THE CLENK

IN THE

Supreme Court of the Wnited States

¢

ORRIE TUCKER AND CATHERINE TUCKER,

PETITIONERS

METROWEST MEDICAL CENTER, F/K/A

FRAMINGHAM UNION HOSPITAL, AND

WILLIAM S. GEORGE, M.D.,

PETITION FOR A WRIT OF CERTIORARI TO

THE APPEALS COURT OF MASSACHUSETTS

PETITION FOR A WRIT OF CERTIORARI

GEORGE P. LORDAN, JR. DENNIS P. DERRICK

124 Derby Street Counsel of Record

Salem, MA 01970 Seven Winthrop Street

(978)745-0126 Essex, Ma 01929

(978) 768-6610

At s for the Petitioners

CURRY & TAYLOR @ WASH D.C. @ (202) “? 160 @ USSCINFO.COM

i

QUESTIONS PRESENTED

1. Is it consistent with due process for the State

court to punish the plaintiffs with the most severe

sanction of dismissal of their claims with prejudice and

without a trial for their attorney's gross neglect,

egregious behavior which the plaintiffs never knew

about, condoned or approved?

2. Does it square with fundamental fairness to

deny plaintiffs the right to a trial on the merits of their

malpractice claims by refusing to characterize their

attorney's inexcusable and gross neglect in prosecuting

their claims as the kind of “extraordinary circumstance”

which justifies relief from a judgment of dismissal

under Rule 60(b), especially where the plaintiffs never

knew about, condoned or approved of their former

attorney's egregious behavior?

il

TABLE OF CONTENTS

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CPN BIW os ssccsisiccnsisccisrvicinisonmnicanenisinnmennnnans 1

TUCO vsciccsssticercscsassenerieeneisnenenamainaiaamneiaaenn 2

RELEVANT PROVISIONS INVOLVED ...........sccccsscsssssssseeesseseeenees 2

CIT UIIET oa sisicssnenisnsscrneniccacncenieinesetnnatiadaenegumannnaetiats 3

REASONS FOR GRANTING THE WRIT ..............sssccssssssessssseseees 12

CII ainissccssnesensssecacstsescsateannincoeueaneneeeananinenents 20

APPENDIX

Amends Carat FRRIIII ocnsrccisicssseinisnciesensgniacsesenteurens la

Appeals Court Memo & Ordet.............cccccccesessseeeeeeeees 2a

POCECe CE ENC IIIE CIID inci csnnncescctsntarnnctuirtiennnenicosnens 7a

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iii

TABLE OF AUTHORITIES

CASES

ACKERMANN V. UNITED STATES, 340 U.S. 193,

REE EA no re 16, 19

AMERICAN RAILWAY EXPRESS Co. V. LEVEE, 263

I 2

ARMSTRONG V. MANZO, 380 U.S. 545, 552 (1965) ......18, 19

BOARD OF REGENTS V. ROTH, 408 U.S. 564, 571-

EES RSS SEN AEE RO a oe eR 18

CARTER V. ALBERT EINSTEIN MED. CTR., 804

F.2D 805, 806-808(3® CIR. 1986).......cccccccccsccceccceccceeee we AO

COMMUNITY DENTAL SERVICES V. TANI, 282 F.3D

1164, 1168-1171 (OTH CIR. 2002)...0.0..........ccccceccecesceceeees 18

DENTON V. BETH ISRAEL Hosp., 392 MASS.

aE AL eS a a 6

FARLEY V. SPRAGUE, 374 MASS. 419, 423-

aati cn ceteeaioectninehaananenasineannnn 12

IN RE VIRGINIA INFO. SYS. CORP., 932 F.2D 338,

EE ee ee 18

iv

KING V. MORDOWANEC, 46 F.R.D. 474, 477-478(D.

Sciex: Pe eis hsnibssaciheniobocciapncbsbiace deans aa bapaameenmadalaleinabiaiiais 18

KLAPPROTT V. UNITED STATES, 335 U.S. 601,

SP Se Ui accissiniindiacineeaisiasouecagsiatinscieresieiaiaassinieaandainieaaons 13, 16, 17

L.P. STEWART, INC. V. MATTHEWS, 329 F.2D 234,

Ae ee eicnctinetnscbeieitiniadcanibiiasiatiaaiintaiiins 18

LINK V. WABASH RAILROAD Co., 370 U.S. 626,

UE aiiihasinsinatcisectsenesieitniasnslancicebiideaaapainiisiicarcemiiteiienn 14,15

MATHEWS V. ELDRIDGE, 424 U.S. 319, 333(1976) .......... 18

MCNABB V. UNITED STATES, 318 U.S. 332,

iain ciate tah ihe ack eather ea lcencealias 13

METROWEST MEDICAL CENTER ET AL., 441

aE, FN ieeitsietebceieatatlniecincibainpiatsilniitins 1

METROWEST MEDICAL CENTER ET AL., 60 MASS.

APP. CT, LIQBU2/TBIOB) ..cccensercescesceses sssenssenssusscenecnvsssssenes 1

MULLEN LUMBER COMPANY, INC. V. F-P.

ASSOCIATES, INC., 11 MASS. App. CT. 1018,

Lica hicntiachionsieiatnllatidaaicaliebiuiiciiathiiaaaeiaisineianias 12

PARRELL V. KEENAN, 389 MASS. 809, 815

TE detdickteeinciiitininb a Niiiniaddhda Dintasinpaiaiaaaniabinpaaaahis 12

PENTUCKET MANOR CHRONIC HOSPITAL, INC. V.

RATE SETTING COMMISSION, 394 MASS. 2338,

a iiciseeniiatinicsiniassbianisicialelitnanisioiiiuihinianiianieint 12

PIONEER INVESTMENT SERVICES Co. V.

BRUNSWICK ASSOCIATES LTD. PARTNERSHIP,

SBT UF. SEO, SD ncecissnssinsstuiicscreniensncisatinanenanansos 15

Vv

PRIMBS V. UNITED STATES, 4 CT. CL. 366,

re isasiihabahichiniitibiciancahiclanaiatatiit aaa) 18

SHEPARD CLAIMS SERV., INC. Vv. WILLIAM

DARRAH & ASSOCS.,796 F.2D 190,195 (6™ CIR.

STUTUIP ialesesdeiciileatclinitinbaialieidctc at 18

STILIAN V. GTC CORPORATION, 17 MASS. APP. C'T.

fo ae i a eT TT 12

UNITED STATES V. BOYLE, 469 U.S. 241, 250(1985)..15, 16

UNITED STATES V. CIRAMI, 563 F.2D 26, 34-

Sy 5 Rane ats St te aes 18

UNITED STATES V. KARAHALIAS, 205 F.2D 331,

EE Sas Se acincitclebereatns po 17

TATUTE

28 U.S.C. SECTION 2101(C).......ccccccscssesessssssesesceseseececeseeeeee. 2

iit eae AA EEE ALEC ITED

1

OPINIONS BELOW

The unpublished memorandum and ort of the

Massachusetts Appeals Court pursuant to its Rule 1:28

in Orrie Tucker & another v. Metrowest Medical Center

et al., 60 Mass. App. Ct. 1108(12/18/03), summarily

affirming the motion judge of the Superior Court

Department, is set forth in the Appendix hereto(App.

1-6).

The unpublished entry of judgment after

rescript by the Middlesex Division of the Superior

Court Department of Massachusetts in Orrie Tucker et -

al. v. Metrowest Medical Center, f/k/a Framingham

Union Hospital et al., Middlesex Docket No.

MICV2000-05888-A(1/21/04), is set forth in the

Appendix hereto(App. 7-8).

The order of the Supreme Judicial Court of

Massachusetts in Orrie Tucker & another v. Metrowest

Medical Center et al., 441 Mass. 1108(5/3/04), denying

the plaintiffs-appeilants’ Application For Further

Appellate Review and allowing its late filing, is set for

the in the Appendix hereto(App. 9-10).

The unpublished memorandum and order of the

Middlesex Division of the Superior Court Department

of Massachusetts (Zobel, J.) in Orrie Tucker & another

v. Metrowest Medical Center et al., Middlesex Docket

No. MICV2000-05888-A(1/10/02), is set forth in the

Appendix hereto(App. 11-12).

The excerpts of the Plaintiffs-Appellants’ Brief

filed in the Appeals Court of Massachusetts in the case

of Orrie and Catherine Tucker v. Metrowest Medical

2

Center, fikia Framingham Union Hospital and

William S. George, M.D., A.C. No. 2002-P-0461, pp. 29-

43, is set forth in the Appendix hereto(App. 13-15).

JURISDICTION

The order of the Supreme Judicial Court of

Massachusetts, the state court of last resort having

jurisdiction to review the decisions of all inferior state

courts, refusing to allow further appellate review of the

Appeals Court’s summary affirmance of the Superior

Court’s ruling, was entered on May 3, 2004(App. 9-10).

This petition for certiorari by Tucker is filed

within ninety (90) days from the date of the order of the

Supreme Judicial Court denying Tucker further

appellate review of the Appeals Court’s decision. 28

U.S.C. Section 2101(c). American Railway Express Co.

v. Levee, 263 U.S. 19, 20-21(1928).

The jurisdiction of this Court is invoked

pursuant to the provisions of 28 U.S.C. Section

1257(a).

RELEVANT PROVISIONS INVOLVED

United States Constitution, Amendment XIV,

Section lL:

..No state shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any state deprive any

3

person of life, liberty, or property,without

due process of law; nor deny to any

person within its jurisdiction the equal

protection of the law.

Mass. R. Civ. P. 60(b):

(b) Mistake; Inadvertence; Excusable

Neglect; Newly Discovered Evidence;

Fraud, etc. On motion and upon such

terms as are just, the court may relieve a

party or his legal representative from a

final judgment, order, or proceeding for

the following reasons: (1) mistake,

inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence

which by due diligence could not have

been discovered in time to move for new

trial under Rule 59,0); (3) fraud (whether

heretofore denominated intrinsic or

extrinsic), misrepresentation, or other

misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has

been satisfied, released, or discharged, or

a prior judgment upon which it is based

has been reversed or otherwise vacated,

or it is no longer equitable that the

judgment should have prospective

application; or (6) any other reason

justifying relief from the operation of the

judgment. The motion shall be made

within a reasonable time, and for reasons

(1), (2), and (3), not more than one year

after the judgment, order or proceeding

was entered or taken. A motion under this

4

subdivision (b) does not affect the finality

of a judgment or suspend its operation.

This rule does not limit the power of a

court to entertain an independent action

to relieve a party from a judgment, order,

or proceeding, or to set aside a judgment

for fraud on the court...

STATEMENT

On December 20, 2000, the Petitioners Orrie

Tucker and Catherine Tucker (“Tucker”) filed a

complaint against the Respondents Metrowest Medical

Center f/k/a Framingham Union Hospital

(“Metrowest”) and William S. George, M.D. (“Dr.

George”), Orrie Tucker’s Primary Care Physician,

claiming that both were negligent from on or about

December 27, 1996, until November 22, 1997, in failing

to diagnose Orrie Tucker’s colon cancer thereby causing

him personal injuries and resulting in a loss of

consortium and emotional distress for his wife,

Catherine Tucker.

Specifically, Tucker claimed that Metrowest and

its employee, Dr. George, failed to treat and diagnose

properly Orrie Tucker’s presenting symptoms of bloody

rectal discharge precipitated by an episode of diarrhea

and vomiting in Metrowest’s Emergency Room in

December of 1996. Metrowest’s Dr. Brown saw and

examined Tucker at this time and felt a large rectal

polyp. A gastrointestinal consultation by another

doctor at Metrowest (Dr. Bruce Marcel) recommended

a stool culture as well as a sigmoidoscopy after Tucker

was discharged from Metrowest. However, Dr. George,

—————

5

Orrie Tucker’s Primary Care Physician and

Metrowest’s employee, did not follow up with the

sigmoidoscopy or a stool culture and they were never

performed.

Orrie Tucker was eventually readmitted to

Metrowest in November of 1997 with a staphylococcal

endocarditis which resulted in his immediate transfer to

Brigham and Women’s Hospital for emergency

abdominal surgery for adenocarcinoma of the colon by

intussusception of the colon and the removal of an eight

(8) inch section of the colon requiring a colostomy. The

post-operative diagnosis was that the intussusception

was induced by a large polyp as the leading point with a

carcinoma-in-situ in it. Orrie Tucker did well post-

operatively and the colostomy was closed in a few

months.

According to Tucker, routine and accepted

medical practice dictated that Orrie Tucker's

presenting symptoms in Metrowest’s Emergency Room

in December of 1996 of bloody rectal discharge

precipitated by an episode of diarrhea and vomiting

together with Dr. Marcel’s consulting recommendation

that a stool culture as well as a sigmoidoscopy be

performed after Tucker was discharged, required that

Metrowest’s Dr. George, as Tucker’s Primary Care

Physician and Metrowest’s employee, perform a

sigmoidoscopy and/or a colonoscopy. That he did not do

so was the foundation of Tucker’s claim that Metrowest

and its employee, Dr. George, had deviated from the

standard of care in the circumstances.

As Tucker eventually showed through their

expert proof, “[t]he intussusception would not have

6

occurred had the proper follow up of the GI bleed been

done because the polyp would not have been there to be

a leading point. The colon resection and colostomy

would not have been done and the associated

discomfort and suffering would not have occurred.”

Both Metrowest and Dr. George answered by

denying all of Tucker’s allegations, asserting various

affirmative defenses and requesting a Medical

Malpractice Tribunal pursuant to G.L.c. 231, Section

60B. The Tribunal was convened on April 25, 2001, and

Tucker’s counsel, Ms. Roberta Golden, informed counsel

for Metrowest and Dr. George that she would not

submit an offer of proof to the Tribunal but instead

would post a $6,000 bond in order to continue the action

regardless of the Tribunal’s decision. She did so that

day and the Tribunal found that there was insufficient

evidence to raise a legitimate question of liability

appropriate for judicial inquiry. Two days later, on

April 27, 2001, Metrowest and Dr. George jointly

moved to increase the amount of the bond consistent

with the procedure outlined in Denton v. Beth Israel

Hosp., 392 Mass. 277(1984).

On June 28, 2001, the Superior Court

Department, Zobel, J., heard the defendants’ joint

motion to increase the bond. He allowed the motion and

set the bond at $12,000 but stayed its implementation

until August 10, 2001, with a further hearing to be held

at that time. This ruling was bottomed on Attorney

Golden’s representation to the Court that she had an

expert letter regarding the defendants’ liability in this

matter but that it was not presently with her in court.

Judge Zobel ordered Attorney Golden to fax the letter

to the defendants’ counsel by the close of that day(June

28, 2001).

Attorney Golden failed to fax the undated

expert’s letter to the defendants’ counsel until J uly 10,

2001. In addition, defense counsel subsequently learned

from the expert (Dr. Charles Livson) that he had not

written his report concerning the defendants’ liability

until July 5, 2001.

The hearing scheduled for August 10, 2001, was

rescheduled for October 30, 2001. Judge Zobel was then

informed by defense counsel of Attorney Golden’s

misrepresentation about the existence of the expert’s

letter on June 28, 2001, and her subsequent failure to

fax the letter to defense counsel until J uly 10, 2001. The

lower court thereupon removed the stay of his previous

order, increased the bond to $12,000 and further

ordered that Attorney Golden personally pay the

additional $6,000 for the increased bond “within ten

business days” and that it “[nJot be passed to the

client.”

With the additional bond of $6,000 not

forthcoming from Attorney Golden by November 13,

2001, Metrowest and Dr. George jointly moved to

dismiss Tucker’s civil action based upon Attorney

Golden’s failure to comply with the Court’s order. On

November 21, 2001, Judge Zobel allowed the

defendants’ motion and entered an order dismissing

Tucker’s complaint against both Metrowest and Dr.

George with prejudice.

Attorney Golden then filed the required

additional bond on December 13, 2001, and moved for a

reconsideration under Mass. R. Civ. P. 60(b) of the

8

dismissal of Tucker’s claims. On January 11, 2002,

Judge Zobel denied the motion. In a memorandum, the

lower court wrote that

the difficulties and delays this case has

produced are due entirely to the

unexcused—-indeed, inexcusable—

conduct of Plaintiff's [sic] cownsel....A

party is ordinarily entitled to a day in

court, however obnoxious the lawyer’s

conduct. This right is nonetheless not

unlimited. As between a plaintiff whose

lawyer’s conduct has provoked condign

punishment and the innocent defendant—

-put to unfair delay, expense, and

uncertainty by plaintiffs counsel’s

shenanigans—the former should bear the

consequences.

(App.11-12)(emphasis supplied in italics and emphasis

in original is underlined).

Judgment accordingly entered on January 11,

2002. After noticing an appeal from the judgment,

Tucker, now represented by a new attorney, filed a

second motion for reconsideration under Rule 60(b). It

sought the indulgence of the motion judge to give

Tucker their day in court in order to prove their

meritorious claims against Metrowest and Dr. George.

The motion was based upon Attorney Golden’s

withdrawal together with the appearance of new

counsel, the resubmission of the cash surety bond of

9

$6,000 and the notion that Tucker should not be

unfairly penalized by denying them their day in court

for the conduct of their prior counsel. On April 23, 2002,

the Superior Court Department, Locke, J., denied

Tucker’s second motion for reconsideration.

Tucker appealed this judgment to the Appeals

Court. In their Brief as the Plaintiffs-Appellants,

Tucker argued inter alia that this procedural scenario

which resulted in the dismissal of their complaint for

the egregious misconduct of their counsel in failing to

pay timely the bond as ordered deprived them of due

process and the equal protection of the laws as

guaranteed them by the federal constitution(App.13-

15).

On December 18, 2003, the Appeals Court of

Massachusetts in an opinion issued under its Rule 1:28,

summarily affirmed the decision of the Superior Court

Department dismissing Tucker’s civil action. Orrie

Tucker & another v. Metrowest Medical Center &

another, 60 Mass. App. Ct. 1108 (2003)(App. 1-6). In its

unpublished memorandum, the Appeals Court ruled

that Judge Zobel did not abuse his discretion in

increasing the amount of the bond(App.4-5). Moreover,

when Attorney Golden then failed to pay the additional

bond on time, it ruled that the lower court did not err

“in allowing the defendants’ motion to dismiss for

failure to file the bond”(App. 5).

The Appeals Court further observed that the

10

lower court was not obligated to allow Tucker’s motions

for reconsideration “in view of the plaintiffs’ attorney’s

dilatory actions’(App. 5-6, n.6). As it ruled, “{aJn

enlargement of time is appropriate when the failure to

file a bond is excusable neglect on the part of plaintiff's

counsel, where there is ‘no question of irregular

behavior on the part of counsel or [her] seeking tactical

advantage through any pretense.”(App. 5 quoting

Goldstein v. Barron, 382 Mass. 181, 186-187 (1980)).

However, because Attorney Golden’s conduct

was more than mere excusable neglect and constituted

“trregular behavior” on her part, the Appeals Court

held that this decisional law did not apply and that

Tucker’s reconsideration motions were rightly

denied(App.5-6). The Appeals Court failed to address

Tucker’s constitutional arguments that this peremptory

dismissal of their action without a trial based on the

gross oversights of their attorney unfairly denied them

their constitutional right to due process and the equal

protection of the laws.

Tucker then filed an Application for Leave to

Obtain Further Appellate Review of this decision with

the Supreme Judicial Court of Massachusetts. Besides

rehearsing all of the facts already identified herein,

Tucker emphasized that there is no evidence in this

record that Orrie Tucker or Catherine Tucker had

engaged in willful or bad faith conduct or that Tucker’s

conduct in any way formed a part of Judge Zobel’s

justification for ordering a dismissal of their complaint

11

against Metrowest and Dr. George.

That is, Judge Zobel never found or ruled that

the client Tucker had engaged in willful or bad faith

conduct. In addition, Judge Zobel’s rulings, even Judge

Locke’s subsequent ruling, were based solely upon

counsel’s conduct, not the clients’ behavior. Nor was it

found that Tucker knew about, condoned or otherwise

approved of their counsel’s gross neglect in failing to

secure in a timely manner the increased bond or in

failing to produce the expert’s letter when ordered to

do so.

Tucker’s application argued that in the unusual

or extraordinary circumstances where an attorney’s

conduct in the course of litigation reaches the

dimensions of gross neglect or egregious conduct, and

there is an absence of any neglect by the clients

themselves, there is no justifiable reason in law to

impute such egregious conduct to the party and

thereby deprive them unconstitutionally of their day in

court on their legitimate claims.

Following the Supreme Judicial Court’s denial of

Tucker’s application on May 3, 2004 (App.9-10), Tucker

now brings their petition in this Court seeking a writ of

certiorari to the Appeals Court of Massachusetts.

12

REASONS FOR GRANTING THE WRIT

An Emerging Consensus Among the Lower

Courts That Imposing The Most Severe

Sanction of Dismissal Upon Innocent and

Faultless Clients For The Gross Neglect and

Egregious Conduct of Their Attorneys Is A

Violation of Due Process Warrants the

Granting of This Petition.

Tucker’s successive motions for the lower court’s

reconsideration of its dismissal of their complaint were

treated by the Massachusetts courts as if labeled

consistent with their obvious purpose, i.e., as if brought

under Mass. R. Civ. P. 60(b)(1) or (6), or both. Stilian v.

GTC Corporation, 17 Mass. App. Ct. 953, 953(1983).

Mullen Lumber Company, Inc. v. F.P. Associates,

Inc., 11 Mass. App. Ct. 1018, 1019(1981). Rule 60(b) of

the Massachusetts Rules of Civil Procedure is

substantially the same as Fed. R. Civ. P. 60(b). Chavoor

v. Lewis, 801, 804 n.1(1981). The Massachusetts

appellate courts thus give this state rule of procedure

the same construction given the cognate Federal rules.

Pentucket Manor Chronic Hospital, Inc. v. Rate Setting

Commission, 394 Mass. 233, 236-237(1985). Parrell v.

Keenan, 389 Mass. 809, 815 n.8(1983). Farley v.

Sprague, 374 Mass. 419, 423-424(1978).

Accordingly, the federal courts’ interpretation of

Rule 60(b) is profoundly relevant to the scope of Rule

60(b) in Massachusetts practice and the breadth of

relief it provides litigants here. Moreover, this Court

has the final responsibility to formulate the controlling

13

rules for hearings and proof which precede the entry of

default judgments in order that those rules of

procedure provide the parties with due process in their

reach and result. Klapprott v. United States, 335 U.S.

601, 611(1949) (Black, J.) citing McNabb v. United

States, 318 U.S. 332, 341(1943).

Tucker submits that an emerging consensus

among the lower courts interpreting Rule 60(b) holds

that imposing the most severe sanction of dismissal

upon innocent and faultless clients such as Tucker for

the gross neglect and egregious conduct of their

attorneys is a violation of due process and that this

consensus warrants the granting of this Petition. This

Court has yet to rule on this precise question and, as

the tribunal with the final say in how rules of civil

procedure are implemented so that they provide

fundamental fairness and due process to litigants, it

should allow Tucker’s Petition and take this

opportunity to define with precision the kind of neglect

by an attorney which will be imputed to clients in order

to punish them with dismissal of their claims for its

commission. It should then reverse and vacate the

judgment below and remand this matter to the

Superior Court Department for further discovery and

an eventual trial because the gross neglect and

egregious conduct by Tucker’s counsel here cannot

fairly be imputed to them and because a denial of their

day in court on their claims as a result of it is a denial of

due process.

14

Most actions taken by the parties’ legal

representative in the course of litigation are rightly

imputed to those parties since those who decides to

incur the expenses of retaining a lawyer should be able

to rely on that lawyer to tend to the legal business at

hand in a manner consistent with their interests. The

presumption is that the client has notice of all facts

known to his lawyer-agent; and even the negligence of

the parties’ attorney will be imputed to those parties.

In Link v. Wabash Railroad Co., 370 U.S. 626,

633-634(1962), Justice Harlan, writing for the Court’s

majority of four, stated that plaintiff's counsel’s

unexcused failure to appear at a pre-trial conference in

an auto tort case because of a scheduling conflict was

reason enough to dismiss the action with prejudice

under Fed. R. Civ. P. 41(b):

[t]here is certainly no merit to the

contention that dismissal of Petitioner’s

claim because of his counsel’s unexcused

conduct imposes an unjust penalty on the

client. Petitioner voluntarily chose this

attorney as his representative in the

action, and he cannot now avoid the

consequences of the acts or omissions of

this freely selected agent. Any other

notion would be wholly inconsistent with

our system of representative litigation, in

which each party is deemed bound by the

acts of his lawyer-agent and is considered

15

to have “notice of all facts, notice of which

can be charged upon the attorney.”

Id. quoting Smith v. Ayer, 101 U.S. 320, 326(1879). In a

footnote, the Link Court further noted that “keeping

this suit alive merely because plaintiff should not be

penalized for the omissions of his own attorney would

be visiting the sins of [the] plaintiffs lawyer upon the

defendant.” Id. at 634 n.10 (emphasis in original).

However, nothing in Link resolved the lower

court’s power to address the same problem under Rule

60(b). As Justice Harlan explained, “[p]etitioner never

sought to avail himself of the escape hatch provided by

Rule 60(b).” Jd. at 632. In addition, this Court made

clear that it was not considering whether the District

Court would have been abusing its discretion had it

rejected a motion by the petitioner under Rule 60(b)

“which was accompanied by a more adequate

explanation for the absence of petitioner’s counsel from

the pretrial conference.” Jd. at 635.

In Pioneer Investment Services Co. v. Brunswick

Associates Ltd. Partnership, 507 U.S. 380, 396-

397(1993), this Court reiterated the Link principle that

“clients must be held accountable for the acts and

omissions of their attorneys.” Jd. citing United States v.

Boyle, 469 U.S. 241, 250(1985)(late return of a tax

filing). Link involved a late filing by respondents

(unsecured creditors) in bankruptcy beyond the bar

date. Jd. at 384. The Bankruptcy Rule 9006(b)(1)

16

allowed such late filing if it were the result of

“excusable neglect.” Jd. at 385. While the Link Court

affirmed the court of appeals’ decision providing relief

to the unsecured creditors on the basis of excusable

neglect, it expressly rejected the notion that the late

filing by counsel could not be attributed to the clients.

Id. at 396-397.

In so ruling, Justice White wrote that “at least

for purposes of Rule 60(b), ‘excusable neglect’ is

understood to encompass situations in which the failure

to comply with a filing deadline is attributable to

negligence.” Jd. at 394. He distinguished those cases of

ordinary negligence by a party or his attorney under

Rule 60(b)(1) from those cases under Rule 60(b)(6)

demonstrating “extraordinary circumstances” beyond

the parties’ control. Jd. at 393-394. That is, “[b]ecause of

the language and structure of Rule 60(b), a party’s

failure to file on time for reasons beyond his or her

control is not considered to constitute “negligence.” Jd.

citing Klapprott, 335 U.S. at 613-614. In this latter

situation under Rule 60(b)(6), relief would be

warranted if “the party is faultless in the delay.” Jd. at

393-394 citing Ackermann v. United States, 340 U.S.

193, 197-200(1950).

Klapprott’s language is instructive. There the

petitioner,-a naturalized citizen of the United States

but an alleged German national, had been defaulted

from having a denaturalization hearing because he had

been incarcerated for four years by the government

|

17

and was unable to obtain representation to defend

against this denaturalization proceeding. 335 U.S. at

603; 614-615. In reversing the default judgment which

_had entered against him, this Court wrote:

[A]ll petitioner has asked is that the

default judgment be set aside so that for

the first time he may defend on the

merits. Certainly the undenied facts

alleged justify setting aside the default

judgment for that purpose. Petitioner is

entitled to a fair trial. He has not had it.

Fair hearings are in accord with

elemental concepts of justice, and the

language of the “other reason” clause of

[Rule] 60(b) is broad enough to authorize

the Court to set aside the default

judgment and grant petitioner a fair

hearing.

Id. at 615(emphasis supplied). See United States v.

Karahalias, 205 F.2d 331, 335(2nd Cir. 1953)(Hand L.,

J.).

In the aftermath of the this Court’s holdings in

Klapprott, Link and Pioneer, the lower courts have

formulated their own conclusions about when the gross

and inexcusable neglect by an attorney, truly egregious

conduct like Tucker’s counsel here, in the prosecution of

a civil action will be imputed to clients in order to

justify punishing them with the ultimate sanction of

dismissal of their claims with prejudice for its

commission.

Five federal circuit courts of appeals together

with two federal circuits have agreed that an attorney’s

gross and inexcusable conduct, like the conduct here

described by Judge Zobel, is the precisely the kind of

“extraordinary circumstance” within Rule 60(b)(6) for

which a faultless and unknowing client should not be

held responsible and that relief from judgment entered

for this reason should be allowed under Rule 60(b)(6) in

order to give a party his day in court consonant with

due process. Greenspun v. Bogan, 492 F.2d 375, 382(1st

Cir. 1974). Carter v. Albert Einstein Med. Ctr., 804 F.2d

805, 806-808(3rd Cir. 1986). In re Virginia Info. Sys.

Corp., 982 F.2d 338, 342 (4th Cir. 1991). Shepard

Claims Serv., Inc. v. William Darrah & Assocs.,796

F.2d 190,195(6th Cir. 1986).Community Dental Services

v. Tani, 282 F.3d 1164, 1168-1171 (9th Cir. 2002). L.P.

Stewart, Inc. v. Matthews, 329 F.2d 234, 235(D.C. Cir.

1964). Primbs v. United States, 4 Ct. Cl. 366, 370(1984).

See also King v. Mordowanec, 46 F.R.D. 474, 477-478(D.

R.I. 1969); United States v. Cirami, 563 F.2d 26, 34-

35(2nd Cir.1977).

Tucker’s cause of action is a valuable property

right entitled to due process protection. Board of

Regents v. Roth, 408 U.S. 564, 571-572(1972). It cannot

be taken away without notice and a hearing. Jd.

Mathews v. Eldridge, 424 U.S. 319, 333(1976).

Armstrong v. Manzo, 380 U.S. 545, 552 (1965). To hold,

as the Massachusetts courts have now held, that the

gross and inexcusable neglect of an attorney in

prosecuting a case should now be visited on the clients

in the form of a dismissal of their action with prejudice

is a denial of due process, is fundamentally unfair and

a

19

runs counter to the emerging consensus among the

lower courts that imposing this most severe sanction

upon innocent and faultless clients like Tucker for the

gross neglect and egregious conduct of their attorney is

a violation of due process.

In this regard, Justice Black’s observations in his

dissenting opinion in Link, 370 U.S. at 648-049, are apt:

..I think it would be far better in the

interest of the adminstration of justice,

and far more realistic in the light of what

the relationship between a lawyer and his

client actually is, to adopt the rule that no

client is ever to be penalized, as this

plaintiff has been, because of the conduct

of his lawyer unless notice is given to the

client himself that such a threat hangs

over his head. Such a rule would do

nothing more than incorporate basic

constitutional requirements of fairness

into the administration of justice in this

country.

[I]t is of very great importance to

everyone in this country that we do not

establish the practice of throwing

litigants out of court without notice to

them solely because they are credulous

enough to entrust their cases to lawyers

whose names are accredited as worthy

and capable by their government.

Id. (emphasis in original). See Ackermann, 340 U.S. at

205(“It does no good to have liberalizing rules like

- 20

60(b) if, after they are written, their arteries are

hardened by this Court’s resort to ancient common-law

concepts.”)(Black, J., dissenting).

CONCLUSION

For all of the reasons identified herein, this

Court should grant Tucker’s petition for certiorari to

the Appeals Court of Massachusetts, enter an order

vacating the judgment below and remanding the

matter to the Middlesex Division of the Superior Court

Department for a jury trial of Tucker’s claims; and/or

provide them with such other relief as is fair and just in

the circumstances.

Respectfully submitted,

GEORGE P. LORDAN, JR. DENNIS P. DERRICK

124 Derby Street Counsel of Record

Salem, MA 01970 Seven Winthrop Street

(978)745-0126 Essex, Ma 01929

(978) 768-6610

Oe

la

(any footnotes trail end of each document)

Commonwealth of Massachusetts

Appeals Court for the Commonwealth

At Boston,

In the case no. 02-P-461

Orrie Tucker & another,

v.

Metrowest Medical Center & another.

Pending in the Superior Court for the County of

Middlesex,

Ordered, that the following entry be made in the

docket:

Judgment affirmed.

[Filed in the Office

Of the Clerk of

Courts for the County

Of Middlesex—

January 20, 2004

Edward J. Sullivan Clerk]

By the Court,

[Ashley Ahearn], Clerk

Date: December 18, 2003.

2a

Commonwealth of Massachusetts

APPEALS COURT

02-P-461

Orrie Tucker & another, \1/

Ws

Metrowest Medical Center & another, \2/

MEMORANDUM AND ORDER PURSUANT TO

RULE 1:28

In this medical malpractice case, the plaintiffs

contend that the defendants were negligent in failing to

order a sigmoidoscopy or colonoscopy following plaintiff

Orrie Tucker's presentation with bloody diarrhea in

December 1996. As a result, his colon cancer was not

diagnosed until December, 1997, when he underwent

emergency surgery removing an eight-inch section of his

colon and requiring a colostomy. (A.9-12).

The defendants requested a medical malpractice

tribunal pursuant to G.L.c. 231, Section 60B, and the date

was set for April 25, 2001. (A.24). At the tribunal, the

plaintiffs trial counsel, Roberta Golden, informed the

defendants that she would not serve an offer of proof and

would post a $6,000 bond to continue the action.

(A.37). Attorney Golden posted the $6,000 bond that day.

(See docket 4/25/01). As a result, the medical malpractice

3a

tribunal found that there was insufficient evidence to

raise a legitimate question of liability appropriate for

judicial inquiry. (A.35). Relying on Denton v. Beth Israel

Hosp., 392 Mass. 277(1984), the defendants brought a

motion to increase the amount of the bond.(A. 37-39).

On June 28, 2001, a conference to review the status

of the case was held. (A.57). The court allowed the

defendants’ motion and set the bond at $12,000, staying

the allowance of the motion until August 10, 2001, for

further hearing. (A.71). According to the defendants’

memorandum filed in opposition to the plaintiffs’ (first)

motion for reconsideration (A.200-202), which the judge,

in denying that motion, referred to as accurately stating

the history of this matter(A.208)\3/, the stay was based on

Attorney Golden's representations that she had an expert

letter regarding the case. She then stated that she did not

have the letter with her in court and the court ordered

her to fax the letter to defense counsel by the end of the

day.

An undated expert’s letter was faxed to defense

counsel on July 10, 2001. (A.127). Defense counsel

subsequently learned from the expert that the letter had

not been written until July 5, 2001. The hearing was

continued by the court until October 30, 30, 2001, at which

time defense counsel informed the judge of Attorney

Golden’s misrepresentation to the court on June 28,

2001.(See A. 201, 208). The trial judge then removed the

stay of his previous order and increased the bond to

$12,000, payable within ten business days. He ordered the

additional bond to be furnished by Attorney Golden, not

by the plaintiffs.(A.150).

On November 13, 2001, the defendants brought

motions to dismiss the plaintiffs’ complaint because of

failure to post the increased bond and for entry of final

4a

judgment pursuant to Mass. R. Civ. P. 54(b), 365 Mass.

821(1974). (Docket #14, A. 142, 145). On November 21,

2001, the court allowed the defendants’ motions.\4/ (A.196,

198). On December 19, 2001, the plaintiffs filed a motion

for reconsideration which was denied on January 11, 2002.

The judge found that the difficulties and delays in the

case were due “entirely to the unexcused - indeed,

inexcusable - conduct of Plaintiffs’ counsel.... A party is

ordinarily entitled to a day in court, however obnoxious

the lawyer's conduct. This right is_ none-

theless not unlimited. As between a plaintiff whose

lawyer's conduct has provoked condign punishment and

the innocent defendant - put to unfair delay, expense,

and uncertainty by plaintiff's counsel shenanigans - the

former should bear the consequences.” (A. 208). Judgment

was entered on January 11, 2002, and the plaintiff filed a

timely notice of appeal. (Docket ## 24, 25). On March 20,

the plaintiffs, represented by successor counsel, filed a

second motion for reconsideration. (A. 212-216). This

motion was denied on April 23, 2002. (A. 226). A plaintiff

may waive the medical malpractice tribunal by declining

to present an offer of proof and is encouraged to do so by

filing appropriate notice with the court. “Upon waiver by

the plaintiff, the judge may enter a finding for the

defendant as to the tribunal proceeding.” Denton v. Beth

Israel Hosp., 392 Mass. at 280 n.4. “Ifa plaintiff declines

to make an offer of proof, then the judge may assume that

the plaintiffs are entirely frivolous. In that case, the

judge may, without abusing his discretion, increase the

bond to an amount calculated to cover all the costs which

the defendant is likely to incur in defending the suit,

including attorney’s fees.” Jd. at 280.

We think the judge did not abuse his discretion in

increasing the amount of the bond in this case. Indeed, he

5a

stayed the order in reliance on the plaintiffs’ counsel's

representation that she had an expert letter. Once that

representation proved to be false, he was justified in

removing the stay and requiring that thé additional

amount be paid by plaintiffs’ counsel. When the additional

amount was not paid, there was no error in allowing the

defendants’ motion to dismiss for failure to pay the

bond.\)/ An enlargement of time is appropriate when the

failure to file a bond is excusable neglect on the part of

plaintiffs’ counsel, where there is “no question of irregular

behavior on the part of counsel or [her] seeking tactical

advantage through any pretense.” Goldstein v. Barron,

382 Mass. 181, 186-187(1980). That is not the case here.

Judgment affirmed.

By the Court (Cypher, Cowin, & Mills, JJ.)

[Ashley Ahearn]

Clerk

Entered: December 18, 2003

Footnotes

\l/ Catherine Tucker.

\2/ William S. George.

\3/ The appendix does not contain the relevant

transcripts.

\4/ The docket entries show that the findings and orders

allowing the motions are dated November 21, 2001. This

is clearly a scrivener’s error. See A. 196 with the

handwritten entry “11-21-01.” Furthermore, November

11, 2001, was a State holiday, Veterans’

Day, and predated the motion by two days.

\5/ The plaintiffs argue that the additional bond was paid;

however, that was not until December 12, 2001, after

6a

judgment dismissing the case. The judge was not

obligated to allow the plaintiffs’ motions for

reconsideration in view of the plaintiffs’ attorney's

dilatory actions.

7a

Commonwealth of Massachusetts

County of Middlesex

The Superior Court

Civil Docket #:MICV2000-05888-A

RE: Tucker et. al. v. Metrowest Medical Center, f/k/a

Framingham Union Hospital et al.

TO: Roberta Golden, Esquire

41 Pleasant Street

Framingham, MA 01701

NOTICE OF DOCKET ENTRY

You are hereby notified that on 1/21/2004,the

following en-try was made on the above referenced

docket:

JUDGMENT AFTER RESCRIPT - This action

came on for entry of judgment upon receipt of the rescript

from the Appeals Court from the Commonwealth of

Massachusetts (Rules of Appellate Procedure, Rule 28),

and thereupon, upon consideration thereof, it is

ORDERED and ADJUDGED: Defendants motion to

dismiss is allowed; plaintiffs complaint is dismissed with

prejudice as to both defendants (copies sent)

Dated at Cambridge, Massachusetts this 21* day of

January, 2004.

Edward J. Sullivan

Clerk of Courts

By: Brian Burke

8a

Assistant Clerk

9a

Supreme Judicial Court of Massachusetts

One Beacon Street, Third Floor, Boston, MA 02108

(617)557-1020

Dennis P. Derrick, Esquire

7 Winthrop Street

P.O. Box 37

Essex, MA 01929

Re: Docket No. FAR-14025

Orrie Tucker & another

VS.

Metrowest Medical Center & another

Middlesex Superior Court No. M IC V2000-05888

A.C. No. 2002-P-0461

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on 5/03/04, the above

captioned Application for Further Appellate Review was

denied. The Motion to File Application Late is allowed.

(Cowin, J., recused.)

Susan Mellon, Clerk

Dated: May 3, 2004

To: Dennis P. Derrick, Esquire

George P. Lordan, Jr., Esquire

James L. Wilkinson, Esquire

10a

Christopher Lavoie,, Esquire

lla

Commonwealth of Massachusetts

Middlesex,ss.

Superior Court

Docket No. 00-5888

Orrie Tucker et al.,

Plaintiffs,

V.

Metrowest Medical Center et al.,

Defendants.

Memorandum and Order

Defendant Metrowest Medical Center's Opposition

to Plaintiffs’ motion for Reconsideration accurately states

the history of this case.

I am firmly of the opinion that the difficulties and

delays this case has produced are entirely to the

unexcused—-indeed, inexcusable—-conduct for the

Plaintiff's counsel.

Experience teaches that a lawyer who so

vigorously disregards requirements of the sort involved

here generally does so to pre-serve a weak case.

That observation, however, is not controlling. A

party is ordinarily entitled to a day in court, however

obnoxious the lawyer's conduct. This right is nonetheless

12a

not unlimited. As between a plaintiff whose lawyer's

conduct has provoked condign punishment and the

innocent defendant— put to unfair delay, expense, and

uncertainty by plaintiff's counsel's shenanigans—

the former should bear the consequences.

ORDER

Accordingly, it is Ordered, that Plaintiffs Motion

for Reconsideration be, and the same hereby is, in all

respects, Denied.

[Hiller B. Zobel]

Hiller B. Zobel

Associate Justice

Superior Court

Dated: January 10, 2002

[Entered on docket

& copies mailed 1/11/2002]

ea ae

13a

[Excerpts of the Appellate Brief of Orrie and Catherine

Tucker filed in the Appeals Court of Massachusetts in the

case of Orrie and Catherine Tucker v. Metrowest Medical

Center, fik/a Framingham Union Hospital and William

S. George, M.D., A. C. No. 2002-P-0461, pp. 29-43]

C. The Dismissal of the Complaint Was

Unconstitutional And Unjustly Penalized the Plaintiffs.

The Judge abused his discretion and erred as a

matter of law when he penalized the Plaintiffs because of

the alleged misconduct of the Plaintiffs’ original counsel.

The Judge based his dismissal upon the failure to post the

increased bond in the amount of $6,000.00 by the

Plaintiffs’ counsel only and at her sole expense within ten

business days....

..The Plaintiffs’ counsel actually paid the

additional $6,000.00 bond on December 12, 2001, which

was due on November 16, 2001, but which was delayed

because of the Plaintiffs’ counsel's excusable delay in

acquiring a surety bond or the funds necessary to post

| the bond. No specific reasons, except the J udge’s sole

) decision that the Plaintiff's counsel had “a weak case” and

that the Defendants were “innocent,” were given by the

Judge...

..The Plaintiffs contend that the application of the

statutes [requiring the filing of a bond] that have imposed

financial obstacles to the obtaining of access to the Courts

violate their rights and deprive them of due process....The

unbridled discretion of the Judge to set the bond amount

in the present case has been exercised unreasonably,

prohibiting a meritorious claim which gives rise to a

constitutional violation. The decision in the case

l4a

of Damaskos v. Board of Appeals of Boston, 359 Mass.

55(1971),...held that the statute [requiring a bond] met

constitutional standards as long as the judge exercised his

discretion in setting the bond amount to accomplish these

purposes [of discouraging frivolous appeals and not

unreasonably obstructing claims with merit].

In the present case, the Judge abused his

discretion by requiring $12,000.00 for a case which could

have passed muster at the tribunal and only for the

purposes of punishing Plaintiffs’ counsel rather than the

Plaintiffs.

A number of cases have sustained due process

challenges to statutes that presented financial obstacles

to the filing of a civil suit, such as, Boddie v. Connecticut,

401 U.S. 371, 380-383 (1971).

The Plaintiffs suggest that they are subjected toa

violation of Article 15 of the Massachusetts Declarations

of Rights because they have been subjected to an

unreasonable burden in order to proceed with a

meritorious suit....

...The question then becomes, are these fees

constitutional or do they violate Article 11, Article 15

and/or Article 30 of the Massachusetts Declaration of

Rights and by extension the comparable rights

guaranteed under the United States Constitution. We

present this issue to the Court for consideration.

Furthermore, in the present case the Judge has

made a third party unrelated to the negligence claims

responsible for payment of the bond in order for the

parties to go forward. In other words, the Judge has tied

the hands of the Plaintiffs’ ability to pursue their

meritorious claims dependent upon a third party's actions

that have no claim at all against the Defendants. This

financial obstruction, the payment of $6,000.00 by

15a

Plaintiffs’ counsel, the payment of which is ordered not to

be passed on to the Plaintiffs, is itself unconstitutional

and a violation of the Plaintiffs’ rights under

Massachusetts Declaration of Rights and the United

States Constitution.

This Court should provide the equal treatment

protected by the Fourteenth Amendment to the [United

States] Constitution because the [LJegislature[‘]s

standard in passing General Laws] Chapter 231, Section

60B, and the Court[‘]s interpretations have denied the

Plaintiffs their rights under Massachusetts Law and the

Fourteenth Amendment under the united States

Constitution...