Mass. Biologic Labs. of the Univ. of Mass. v. Medimmune, LLC.

• Decision Date: 02 December 2016
• Docket Number: No. 15–P–1586.,15–P–1586.
• Citation: Mass. Biologic Labs. of the Univ. of Mass. v. Medimmune, LLC., 90 Mass.App.Ct. 1118, 65 N.E.3d 31(Table) (Mass. App. 2016)
• Parties: MASSACHUSETTS BIOLOGIC LABORATORIES OF THE UNIVERSITY OF MASSACHUSETTS, v. MEDIMMUNE, LLC.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 1118

65 N.E.3d 31 (Table)

MASSACHUSETTS BIOLOGIC LABORATORIES OF THE UNIVERSITY OF MASSACHUSETTS,

v.MEDIMMUNE, LLC.

No. 15–P–1586.

Appeals Court of Massachusetts.

December 2, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Massachusetts Biologic Laboratories of the University of Massachusetts (MassBiologic), appeals from a judgment that entered after the defendant's, MedImmune, LLC (MedImmune), summary judgment motion was granted. On appeal MassBiologic claims that the judge erred in dismissing its G.L. c. 93A claim and in denying it's motion to compel discovery. We affirm.

1. Summary judgment. MassBiologic claims that the motion judge erred in granting Medlmmune's motion for summary judgment as to its c. 93A claim where Medlmmune disregarded its contractual obligations to MassBiologic over royalty payments for Synagis² based on an improper and coercive purpose, thereby triggering a c. 93A violation. We disagree.

We review appeals from motions for summary judgment de novo, analyzing "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and that moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). We therefore review MassBiologic's c. 93A claim to determine whether it "ha[d] ‘no reasonable expectation of proving an essential element’ of [its] case." Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 659 (2003), quoting from Kourouvacilis v. General Motors Corp., 410 Mass. 706, 710 (1991).

"Chapter 93A, § 11, ‘bestows a right of action on "[a]ny person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal," as a result of the unfair or deceptive act or practice, or unfair method of competition, of another person who engaged in trade or commerce.’ " Aggregate Indus.—N.E. Region, Inc. v. Hugo Key & Sons, Inc., 90 Mass.App.Ct. 146, 152 (2016), quoting from Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813, 822 (2014). See Ellis v. Safety Ins. Co., 41 Mass.App.Ct. 630, 639–640 & n.13 (1996) (c. 93A protects both consumers and businesses from unfair business practices). MassBiologic claims that by filing suit in Maryland to determine the duration of the royalty payments, MedImmune was "motivated by an intent to coerce MassBiologics into compromising its contractual rights," thereby violating c. 93A.

In Aggregate Indus., supra, this court determined that the unfair or deceptive practice must arise from trade or commerce, "not tangentially from litigation concerning that conduct." In fact, c. 93A "has never been read so broadly as to establish an independent remedy for unfair or deceptive dealings in the context of litigation."Ibid., quoting from Morrison v. Toys "R" Us, Inc., Mass., 441 Mass. 451, 457 (2004). Similarly, ordinary contract disputes, as to whether money is owed or performance due, are not within the reach of G.L. c. 93A. See Duclersaint v. Federal Natl. Mort. Assn., 427 Mass. 809, 814 (1998) ; Aggregate Indus., supra. Here, the motion judge did not err in allowing summary judgment as to the c. 93A claim because MassBiologic had no reasonable expectation of proving all the elements of that claim.

2. Motion to compel discovery. MassBiologic also claims that Medlmmune placed the advice about its ability to terminate the agreement "at issue in the case" and thereby waived any claims that such advice was privileged and immune from discovery. We disagree.

In Darius v. Boston, 433 Mass. 274, 277–278 (2001), quoting from Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975), the Supreme Judicial Court explained that while it is accepted that litigants may implicitly waive attorney-client privilege when placing certain claims or defenses at issue in a case, to find such a waiver a judge must find three conditions: "(1) assertion of...