Zeman et al v. Williams et al

Filing 117

Judge George A. OToole, Jr: ORDER entered granting 105 Motion to Dismiss Claims Against Defendant Neurologix; granting in part and denying in part 107 Motion to Amend; granting in part and denying in part 108 Motion to Amend (Danieli, Chris)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 11-10204-GAO
ROBERT ZEMAN and JULIA ZEMAN,
Plaintiffs,
v.
ZIV WILLIAMS, M.D., EMAD ESKANDAR, M.D., HINA ALAM, SARY F. ARANKI, M.D.,
RHONDA BENTLEY-LEWIS, M.D., SUSAN BURNSIDE, RICHARD D’AUGUSTA,
ASHWIN DHARMADHIKARI, M.D., DEBORAH ECKER, MELISSA FRUMIN, M.D.,
ROBERT J. GLYNN, ELIZABETH L. HOHMANN, M.D., DAVID A. JONES, M.D.,
THOMAS KOLOKOTRONES, KEITH A. MARCOTTE, FRANCISCO MARTY, M.D.,
ELINOR A. MODY, M.D., JOAN RILEY, ANDREW P. SELWYN, ARTHUR C. WALTMAN,
M.D., SJIRK WESTRA, M.D., SEAN R. WILSON, M.D., and NEUROLOGIX, INC.,
Defendants.

ORDER
February 4, 2015
O’TOOLE, D.J.
Defendants Ziv Williams and Emad Eskandar have moved to amend their Answers (dkt.
nos. 96, 97) to the plaintiffs’ Revised Second Amended Complaint (dkt. no. 93) to add
crossclaims against defendant Neurologix, Inc. The defendants seek to add three crossclaims:
breach of contract, indemnification, and contribution under Massachusetts General Laws Chapter
231B. Neurologix has opposed the defendants’ motion only as it applies to the statutory claim for
contribution.
Neurologix contends that amendment would be futile as contribution is barred under
Massachusetts law. See Hatch v. Dep’t of Children, Youth, & Their Families, 274 F.3d 12, 19
(1st Cir. 2001) (“[F]utility is fully sufficient to justify the denial of a motion to amend.”). Under
Mass. Gen. Laws ch. 231B, § 4, “[w]hen a release . . . is given in good faith to one of two or
more persons liable in tort for the same injury . . . [i]t shall discharge the tortfeasor to whom it is

given from all liability for contribution to any other tortfeasor.” Accordingly, a good faith
settlement will preclude a crossclaim for contribution. Noyes v. Raymond, 548 N.E.2d 196, 198
(Mass. App. Ct. 1990). A lack of good faith “includes collusion, fraud, dishonesty, and other
wrongful conduct.” Id. at 199.
Once Neurologix met its “initial burden of establishing that a settlement has been agreed
upon and its nature and terms,” id. at 200, the burden shifted to the defendants to assert “a
legitimate issue of good faith.” United States v. Dynamics Research Corp., 441 F. Supp. 2d 259,
268-69 (D. Mass. 2006). However, the defendants’ allegations concerning lack of good faith are
conclusory at best. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (requiring
“enough facts to state a claim to relief that is plausible on its face”). The sole basis for the
defendants’ allegations is that the “amount of the plaintiffs’ settlement with Neurologix is
significantly less than what the plaintiffs have demanded from [the surgeons].” (Reply at 2 (dkt.
no. 116).) However, an allegation pertaining to the amount of the settlement is by itself
insufficient to show a lack of good faith. See Chapman v. Bernard’s Inc., 198 F.R.D. 575, 577-78
(D. Mass. 2001) (“The amount of a settlement has no bearing on the good faith question.”).
For these reasons, the defendants’ Motions (dkt. nos. 107, 108) to Amend are GRANTED
as to their breach of contract and indemnification claims and DENIED as to their contribution
claim. The defendants are instructed to file their amended answers within 28 days from the date
of this Order.
The Joint Motion (dkt. no. 105) to Dismiss Plaintiffs’ Claims Against Defendant
Neurologix is GRANTED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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