Zeigler v. Atrius Health, Inc. et al

Filing 70

Judge Indira Talwani: ORDER entered. re 52 First MOTION for Extension of Time to 08/31/2016 to Complete Discovery filed by Alan Zeigler, 35 First MOTION to Amend Complaint filed by Alan Zeigler, 50 MOTION for Leave to File filed by Alan Zeigler. SEE attached Order for details. (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALAN ZEIGLER,
Plaintiff,
v.
ATRIUS HEALTH, INC.,
CHRISTOPHER JOSEPH, and
MICHAEL RATER,
Defendants.

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Civil Action No. 15-cv-13384-IT

ORDER
July 22, 2016
TALWANI, D.J.
Before the court are the following motions brought by Plaintiff: his Motion for Leave to
File Second Amended Complaint [#35], Motion for Leave to Serve Four Interrogatories and Two
Requests for Production of Documents [#50], and Motion for Leave to Extend Fact Discovery
Deadlines [#52]. For the reasons below, Plaintiff’s motion for leave to file a second amended
complaint is denied, but fact discovery is extended to August 25, 2016, in the manner described
in this Order.
I.

Motion for Leave to Amend
Plaintiff’s Motion for Leave to File Second Amended Complaint [#35] is DENIED.

Plaintiff seeks to amend his complaint to change his claim for medical malpractice against
Defendant Rater—Count Three—to a claim for common law negligence. See Am. Compl. [#30];
Proposed Second Am. Compl. [#36-1]. Plaintiff’s motion comes well after February 28, 2016,
the date after which “[e]xcept for good cause shown, no motions seeking leave . . . to amend the
pleadings or assert new claims or defenses may be filed.” Scheduling Order [#29]. The court

finds that Plaintiff has not established good cause for the late amendment.
Plaintiff argues that counsel learned from the May 4, 2016 deposition of Michael Rater
that there was no physician-patient relationship between Plaintiff and Dr. Rater. Where “an
employer retains a physician to examine employees, generally no physician-patient relationship
exists between the employee and the doctor.” Bratt v. Int’l Bus. Machs. Corp., 467 N.E.2d 126,
136 n.21 (Mass. 1984). The facts as to the absence of a physician-patient relationship do not
appear, however, to have been in dispute. Amended Complaint ¶¶ 30-31 [#30] (alleging that
Atrius Health, Inc. (“Atrius”) ordered Plaintiff to undergo a psychiatric examination by Dr.
Rater, a psychiatrist selected by Atrius); Answer Def. Atrius Health, Inc. & Christopher Joseph
¶¶ 30-31 [#34] (admitting that Atrius contacted SCOPE medical to arrange for an independent
medical examination, and that that examination was performed by Dr. Rater); Answer Def.
Michael Rater ¶¶ 30-31 [#31] (admitting that he performed the requested independent medical
examination). That the deposition did not occur until May 4, 2016, and thus provides no
justification for the late amendment.
Plaintiff argues that the amendment would constitute a mere change in the name of the
cause of action and would not require the taking of any additional discovery. The amendment,
however, would require the convening of a new medical malpractice tribunal and delay the
progress of this case. On November 23, 2015, this court referred the medical malpractice claim
to the Suffolk County Superior Court for a medical malpractice tribunal. Order [#24]. The
tribunal set a hearing to take place on May 11, 2016 and a deadline of May 4, 2016, for the
Plaintiff to file its Offer of Proof. Opp’n Mot. Leave File Second Am. Compl., Ex. B [#49-2]
(Order of Tribunal Hearing). Plaintiff did not file his Offer of Proof by May 4, and on May 10,
2016, the day before the tribunal hearing was to take place, Plaintiff advised Defendant Rater

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that he would be dismissing the medical malpractice claim, obviating the need for the scheduled
hearing. Id. Ex. E [#49-5] (Email from A. Khorsand to R. Bouley).
If Plaintiff were allowed to amend his claim, the medical malpractice tribunal process
would have to begin anew, as a claim of general professional negligence against a medical
professional acting in his or her capacity as a medical professional requires referral to a tribunal
—even if the claim is not a medical malpractice claim, and even if there is no physician-patient
relationship between the plaintiff and the medical professional. See Santos v. Kim, 706 N.E.2d
658, 660-61 (Mass. 1999) (referral to medical malpractice tribunal does not depend on presence
of physician-patient relationship where suit is brought against medical provider in his capacity as
a medical provider). The law appears settled that even the amended claim against Defendant
Rater would require referral to the medical malpractice tribunal. See, e.g., Lambley v. Kameny,
682 N.E.2d 907, 913 (Mass. App. Ct. 1997) (holding that it was proper to refer to medical
malpractice tribunal job applicant’s suit against psychiatrist who examined applicant at
prospective employer’s request).
For these reasons, Plaintiff is unable to show good cause and his motion to amend is
DENIED.
II.

Motions for Additional Discovery
Plaintiff’s Motion for Leave to Serve Four Interrogatories and Two Requests for

Production of Documents [#50] is ALLOWED IN PART and DENIED IN PART for the reasons
stated in open court.
Plaintiff may propound the following modified Interrogatory 26: Identify only by age all
Atrius employees who worked under Defendant Joseph who were allowed to work remotely
during days on which one-on-one meetings with Joseph were scheduled, from 2010 to the

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present.
Plaintiff may not propound Interrogatory 27 but can obtain that information from the
Rule 30(b)(6) deposition of Atrius.
Plaintiff may propound the following modified Interrogatory 28: Identify all Atrius
Technology Department employees—by age, and FMLA/ADA request status—of any FMLA
and/or ADA work accommodations where there were allegations of workplace threats or
violence, from 2010 to the present.
Plaintiff may propound Interrogatory 29.
Plaintiff may not propound Request for Production 154.
Plaintiff may propound Request for Production 155.
Atrius shall respond to the interrogatories and document requests before the Rule
30(b)(6) deposition of Atrius.
Plaintiff’s Motion for Leave to Extend Fact Discovery Deadlines [#52] is ALLOWED IN
PART and DENIED IN PART. In this motion, Plaintiff seeks to take the depositions of Dale
Rubino and Christopher Diguette, and the Rule 30(b)(6) deposition of Atrius. For the reasons
stated in open court, the court allows Plaintiff to take those depositions with the following
limitations: (a) the deposition of Dale Rubino must take place by August 10, 2016; (b) the
deposition of Christopher Diguette must occur by August 10, 2016, and the deposition is limited
to four hours; (c) the deposition of Atrius must take place by August 25, 2016.
III.

Further Discovery Deadlines

As to further deadlines, the court orders as follows:
1. Plaintiff’s trial expert(s) must be designated, and the information contemplated by Fed.
R. Civ. P. 26(a)(2) must be disclosed by, August 10, 2016.

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2. Defendants’ trial expert(s) must be designated, and the information contemplated by Fed.
R. Civ. P. 26(a)(2) must be disclosed by, September 9, 2016.
3. Unless otherwise agreed to in a joint briefing schedule filed with the court, Defendants
Atrius and Joseph must file any dispositive motions by thirty days after the Rule 30(b)(6)
deposition of Atrius. In advance of filing any dispositive motions, Defendants must
contact Plaintiff’s counsel.
IT IS SO ORDERED.
July 22, 2016

/s/ Indira Talwani
United States District Judge

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