643 F.2d 880 (1st Cir. 1981), 80-1283, Feinstein v. Massachusetts General Hospital

Docket Nº:80-1283.
Citation:643 F.2d 880
Party Name:Jerome FEINSTEIN, Plaintiff-Appellant, v. MASSACHUSETTS GENERAL HOSPITAL, Defendant-Appellee.
Case Date:March 10, 1981
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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643 F.2d 880 (1st Cir. 1981)

Jerome FEINSTEIN, Plaintiff-Appellant,



No. 80-1283.

United States Court of Appeals, First Circuit

March 10, 1981

Argued Sept. 5, 1980.

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Richard J. Chin, Brockton, Mass., with whom Albert E. Grady, Brockton, Mass., was on brief, for plaintiff, appellant.

Joseph L. Doherty, Jr., Medford, Mass., with whom Raymond J. Kenney, Jr. and Martin, Magnuson, McCarthy and Kenney, Boston, Mass., were on brief, for defendant-appellee.

Before CAMPBELL and BOWNES, Circuit Judges, and KEETON, District Judge. [*]

KEETON, District Judge.

This appeal turns on whether the Rules of Decision Act, 28 U.S.C. § 1652, and the doctrine announced in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), require the federal courts to apply certain provisions of the Massachusetts medical malpractice statute, Mass.Gen.Laws ch. 231, § 60B, in medical malpractice actions in which federal jurisdiction is based solely on the diversity of citizenship of the parties. Before stating the issues more precisely, we outline the facts of the case and briefly describe Massachusetts' procedure for screening malpractice actions brought against providers of health care.


The plaintiff, a citizen of Rhode Island, brought this personal injury action in April 1979, alleging that he contracted hepatitis as a result of receiving a transfusion of contaminated blood due to the negligence of the defendant, Massachusetts General Hospital. Defendant moved to refer the case for a hearing before a medical malpractice tribunal pursuant to Mass.Gen.Laws ch. 231, § 60B, which requires "(e)very action for malpractice, error or mistake against a provider of health care" to be heard "within fifteen days after the defendant's answer has been filed" by a tribunal consisting of a single justice of the Superior Court, and a physician 1 and an attorney authorized to practice in the Commonwealth. The physician and attorney are selected by the single justice from lists prepared by the Massachusetts Medical Society and the Massachusetts Bar Association.

At the hearing before the malpractice tribunal, the plaintiff is required to make an "offer of proof" of the evidence supporting his or her claim. Section 60B offers examples of admissible evidence 2 and authorizes the tribunal to subpoena witnesses or records for either party or on its own motion. After presentation of the evidence, the tribunal must determine whether "the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry

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or whether the plaintiff's case is merely an unfortunate medical result." Mass.Gen.Laws ch. 231, § 60B. The Massachusetts Supreme Judicial Court has ruled that the tribunal's function is "to evaluate (the evidence offered by the plaintiff) in the manner in which a judge presiding at a civil trial would do 'in ruling on a defendant's motion for directed verdict,' " McMahon v. Glixman, Mass.Adv.Sh. (1979) 2277, 2284, --- Mass. ---, ---, 393 N.E.2d 875, 879, quoting Little v. Rosenthal, Mass.Adv.Sh. (1978) 2793, 2798-99, 376 Mass. 573, ---, 382 N.E.2d 1037, 1041. The statute declares that the tribunal's determination is admissible as evidence at trial. 3

If the tribunal finds for the defendant, section 60B requires a plaintiff wishing to pursue the action through the "usual judicial process" to file a two thousand dollar bond with the clerk of court. The bond is payable to the defendant for costs assessed, including witness and expert's fees and attorney's fees, "if the plaintiff does not prevail in the final judgment." Exercising discretion, the single justice may increase the bond, or, upon motion filed by the plaintiff and after determining that the plaintiff is indigent, may reduce it, but may not eliminate the bond requirement completely. If the bond is not posted within thirty days of the tribunal's finding for the defendant, section 60B requires that the action "shall be dismissed." See Goldstein v. Barron, Mass.Adv.Sh. (1980) 2567, --- Mass. ---, ---, 414 N.E.2d 998; Austin v. Boston University Hospital, 372 Mass. 654, 661, 363 N.E.2d 515, 519 (1977).

In support of its motion to refer the case to the medical malpractice tribunal, defendant argued that the Massachusetts medical malpractice statute constitutes a substantive rule of law that under Erie Railroad v. Tompkins, supra, must be applied by a federal court exercising its diversity jurisdiction. Plaintiff opposed the motion, arguing that referral would defeat the purposes of diversity jurisdiction. Finding "that the Massachusetts statute imposes substantive requirements to be applied in federal court under Erie and Hanna v. Plumer," 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), the district court allowed the motion to refer the action to the Superior Court for a section 60B hearing. 4 489 F.Supp. 419, 421 (D.Mass.1979). Accord, Byrnes v. Kirby, 453 F.Supp. 1014, 1019 (D.Mass.1978).

A medical malpractice tribunal was convened on December 5, 1979 at the Suffolk Superior Court. After hearing, on December 7, 1979 the tribunal ruled that plaintiff's evidence, if properly substantiated, was insufficient to raise a legitimate question of liability appropriate for judicial inquiry. On January 21, 1980, defendant filed a motion to dismiss the action on the grounds that plaintiff failed to post the bond required by section 60B within thirty days of the tribunal's decision. Plaintiff opposed the motion, reasserting his argument that referral undercuts the purposes of diversity jurisdiction. At a hearing on April 14, 1980, the district court allowed the motion to dismiss and directed the entry of judgment for the defendant, from which plaintiff now appeals.

We note that plaintiff has not argued, either in the district court or on appeal, that the trial court, or this court, should examine the record of the hearing before the medical malpractice tribunal and review its determination that the evidence before it was insufficient to raise a legitimate question of

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liability. 5 Neither has plaintiff argued that he is indigent and therefore unable to afford the two thousand dollar bond normally required by section 60B. 6 Thus, those issues are not before us, and we are presented with but two questions: whether the Rules of Decision Act, 28 U.S.C. § 1652, and the Erie doctrine require a federal district court sitting in diversity to refer "an action for malpractice, error or mistake against a provider of health care" arising under Massachusetts law to a medical malpractice tribunal convened pursuant to Mass.Gen.Laws ch. 231, § 60B, and, if so, whether the district court must dismiss the action when, after hearing, the tribunal determines that the plaintiff's evidence is insufficient to raise a legitimate claim of liability and the plaintiff fails to file a bond within thirty days as required by section 60B. As we agree with the district court that both questions must be answered yes, we affirm.


The Rules of Decision Act provides that "(t)he laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." 28 U.S.C. § 1652. In a long and oft-cited line of cases beginning with Erie Railroad v. Tompkins, supra, the Supreme Court has stated the principles to be applied in determining whether a federal court sitting in diversity must apply a particular rule of state law.

In Erie, the Court held that "laws of the several states" as used in section 34 of the Federal Judiciary Act of September 24, 1789, the predecessor of 28 U.S.C. § 1652, include laws articulated in state court decisions, as well as those contained in state constitutions and statutes. In so doing, the Court overruled Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), which it found had "introduced grave discrimination by non-citizens against citizens," 304 U.S. at 74, 58 S.Ct. at 820, because the common law rules of liability affecting a party varied "according to whether enforcement was sought in the state or in the federal court; and the privilege of selecting the court in which the right should be determined was conferred upon the non-citizen." Id. at 74-75, 58 S.Ct. at 820 (footnote omitted).

The first major elaboration upon the Erie principle came in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), in which the Court turned aside respondent's argument that in a suit in equity to recover on a state-created right, a federal court sitting in diversity should not apply the state's statute of limitations because it was "procedural," not "substantive."

(T)he question is not whether a statute of limitations is deemed a matter of "procedure" in some sense. The question is whether such a statute concerns merely the manner and the means by which a right to recover, as recognized by the State, is enforced, or whether such statutory limitation is a matter of substance in the aspect that alone is relevant to our problem, namely, does it significantly affect the result of a litigation for a federal

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court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court? ... In essence, the intent of (the Erie) decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as...

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