Ward v. Shamburek et al

Filing 77

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDERDefendant Schaefer's motion to transfer this case to Superior Court to convene a medical malpractice tribunal [Docket No. 59] is GRANTED in part. Defendant is directed to take imme diate action to schedule the malpractice tribunal as promptly as possible. The original file in this court will not be transferred to the Superior Court. Discovery in this proceeding will not be stayed, subject to further orders of the Court. Upon completion of all proceedings before the malpractice tribunal, the parties shall file a status report with this Court with proposals for further proceedings in this case. Defendant Schaefer's motion to compel an offer of proof [Docket No. 60] is DENIED. Plaintiff's motion to amend the complaint [Docket No. 52] is DENIED. Plaintiff's motion to take his own deposition [Docket No. 61] is DENIED without prejudice.(FDS, law1)

UNITED STATED DISTRICT COURT
DISTRICT OF MASSACHUSETTS

EDMUND EDWARD WARD,
Plaintiff,
v.
ERNST J. SCHAEFER, M.D.; ROBERT D.
SHAMBUREK, M.D.; ALAN T.
REMALEY, M.D.; and
UNITED STATES OF AMERICA,
Defendants.

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Civil Action No.
16-12543-FDS

MEMORANDUM AND ORDER ON DEFENDANT’S
MOTIONS TO TRANSFER AND COMPEL AND
PLAINTIFF’S MOTIONS TO AMEND AND TAKE DEPOSITION
SAYLOR, J.
This is an action arising out of the use of a drug in a compassionate-use protocol.
Plaintiff Edmund Edward Ward suffers from a rare genetic deficiency that has resulted in, among
other things, severe kidney disease. He alleges that he was fraudulently induced to participate in
what he contends was a non-therapeutic, experimental drug trial. He further contends that he
was led to believe that the drug, ACP-501, would reverse his kidney disease, but that defendants’
true purpose in treating him was to gain data that would be beneficial in selling the company that
produced the drug.
Ward has filed suit against the doctors involved in his treatment, including Dr. Ernst
Schaefer, Dr. Robert Shamburek, and Dr. Alan Remaley. The United States has been substituted
as defendant as to certain claims against Dr. Shamburek and Dr. Remaley pursuant to the
Westfall Act, 28 U.S.C. § 2679(d).

Defendant Schaefer has moved to transfer the claims against him to a Massachusetts
medical malpractice tribunal and to compel plaintiff to make an offer of proof in connection with
that tribunal. Plaintiff has moved to amend the complaint and to have his deposition taken in
light of his medical condition.
I.

Background
A.

Factual Background
1.

The Parties

Edmund Edward Ward is a Massachusetts resident and a lawyer. (Compl. ¶ 1; 2d
Auerbach Aff. Ex. A at 498). Ward was born with an extremely rare genetic deficiency of a
bloodstream enzyme, called lecithin-cholesterol acyltransferase (“LCAT”). (Id. ¶ 9). LCAT is
associated with high-density lipoprotein cholesterol (“HDL-C”), often referred to as the “good
cholesterol.” (Id. ¶ 11). As a result of his deficiency, referred to as “familial LCAT deficiency”
or “FLD,” Ward produces virtually no cholesterol. (Id. ¶ 9). Ward also suffers from other
associated health conditions, including kidney disease. (Id.). He is in stage 5 kidney failure, and
receives dialysis treatment three times a week. (Id.).
Ernst Schaefer, M.D., is a Massachusetts resident. He is a physician at the Tufts
University School of Medicine and Boston Heart Diagnostics. (Id. ¶ 3). Dr. Schaefer is one of
Ward’s regular treating physicians. (Id. ¶ 18).
Robert Shamburek, M.D., and Alan Remaley, M.D., are physicians employed by the
United States Department of Health and Human Services, National Institutes of Health (“NIH”),
in Bethesda, Maryland. (Id. ¶ 4).
2.

ACP-501

The claims of the patent for ACP-501 involve “a method for decreasing accumulation of

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cholesterol in arteries in a human subject not suffering from . . . LCAT . . . deficiency
syndrome.” (Id. ¶ 14). In 2011, Dr. Schaefer and several other physicians published a paper in
the Journal of Clinical Lipidology about LCAT deficiency. (2d Auerbach Aff. Ex. A at 498). 1
The paper concluded that “[i]n the future, the use of recombinant LCAT may be of value in
patients who develop significant renal impairment.”
In 2012, in collaboration with the NIH, AlphaCore (the company that originally produced
the drug) conducted a clinical trial of ACP-501 to determine the safety and tolerability of a single
injection of the drug in 16 to 18 patients with stable coronary artery disease. (Compl. ¶ 15). Dr.
Shamburek and Dr. Remaley collaborated with Bruce Auerbach, an officer at AlphaCore, in
running the trial, and reported that a single injection of ACP-501 was safe and tolerated by the
subjects. (Id. ¶ 16).
3.

The Proposal to Ward

According to the complaint, sometime in 2012, Ward was introduced to Dr. Shamburek,
Dr. Remaley, and Auerbach by his treating physician, Dr. Schaefer, as a potential “ideal research
subject for ACP-501.” (Id. ¶ 18).
The complaint alleges that the four individuals induced Ward to participate as the only
subject in a long-term trial of ACP-501 by misrepresenting that the drug would reverse his
advanced kidney disease. (Id. ¶¶ 22, 46). 2 According to the complaint, they withheld their true
motivation for the study, which was to test the effect of ACP-501 on the production of HDL-C in
an LCAT-deficient patient, “hoping the drug would be considered a potential breakthrough in the

1

Ward is listed as a co-author of the paper. (2d Auerbach Aff. Ex. A at 498).

2

Ward also brought suit against Auerbach, but the claims against him and AlphaCore have been dismissed
for lack of personal jurisdiction.

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prevention of cardiovascular disease,” as well as to acquire long-term safety data, in order to
accelerate the sale of AlphaCore to MedImmune, LLC, an affiliate of AstraZeneca
Biopharmaceuticals, Inc., a large pharmaceutical company. (Id. ¶¶ 23, 46-47). 3
AlphaCore was granted an “orphan drug” designation for ACP-501 and a “compassionate
use” protocol was approved. (Id. ¶ 20). AlphaCore donated to the NIH the ACP-501 needed for
the trial. (Id. ¶ 22).
In January 2013, Ward travelled from Massachusetts to the NIH in Maryland to begin
treatment. (Id. ¶ 27). At the outset of the trial, Auerbach met with Ward and allegedly told him
that the process of using ACP-501 to reverse his kidney failure would take a long time, and that
he should remain in the trial for the full course of treatment because he would “get out of it what
[he puts] into it.” (Id.).
As of the beginning of 2013, Ward “was considered by his physicians to be in kidney
failure,” and he was about to receive regular dialysis. (Id. ¶ 21). Ward postponed dialysis in
order to participate in the trial. (Id. ¶¶ 21, 41).
4.

The Protocol

At some point (the complaint does not specify when), the NIH created a clinical protocol
for Ward’s treatment. The protocol was titled “Expanded access use of intravenous ACP-501 in
one subject with Familial lecithin:cholesterol acyltransferase [rhLCAT] Deficiency.” (Id. ¶ 36).
It appears that AlphaCore and Auerbach played some role in the creation of the protocol,
although the details of their roles are unclear. (See Pl. Ex. G). Under the protocol, Dr.
Shamburek was the principal investigator, Dr. Remaley was the safety-review investigator, and
Dr. Schaefer was the medical monitor. (Id. ¶ 36(f)).

3

The claims against MedImmune and AstraZeneca have been dismissed for failure to state a claim.

4

A draft of the protocol provided for two study sites: one at the NIH facility in Maryland,
and another in Massachusetts where Ward would be treated by his regular physician, Dr.
Schaefer. (Pl. Ex. E at 23). Under that draft of the protocol, Ward would receive an initial phase
of treatment at NIH in Maryland; later, during the second phase, he would receive treatments
every few weeks in Massachusetts with additional treatments at NIH every few months. (Id. at
26-27).
The parties dispute whether that draft became the final operative protocol or whether a
later draft, which provided for only one test site in Maryland, was in fact the final approved
protocol. (See 2d Auerbach Aff. Ex. B at 21; Pl. Surreply at 6-7). It is undisputed that the
protocol, whichever version was adopted, did call for Dr. Schaefer to monitor Ward while he was
home in Massachusetts. (2d Auerbach Aff. Ex. B at 21 (stating that Dr. Schaefer would
“monitor and treat [Ward’s] renal dysfunction and other disorders associated with his FLD”
while in Massachusetts); Pl Ex. E at 21 (stating that Dr. Schaefer would monitor Ward)).
It appears that in June and July 2013 there was some discussion between Dr. Schaefer
and Dr. Remaley concerning the possibility of having ACP-501 sent to Massachusetts so that
Ward could be treated there. (Pl. Ex. H). However, it does not appear that any ACP-501
treatments took place in Massachusetts.
5.

The Trial

Ward was admitted to the NIH facility in Maryland on January 6, 2013. (Id. ¶ 28).
According to the complaint, Ward did not receive and sign the NIH’s Consent to Participate in a
Clinical Research Study until January 24, after he had already been subjected to several days of
study. (Id. ¶ 29). The complaint further alleges that the consent form was inadequate, because it
failed to fully disclose defendants’ financial interests in ACP-501. (Id. ¶ 35).

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The regimen which Ward underwent was “painful, grueling, and confining.” (Id. ¶ 28).
For example, from January 24 to February 27, 2013, Ward remained in one NIH hospital room
for 24 hours a day. (Id.). He had two intravenous lines continuously inserted, one to administer
ACP-501 for one hour in the morning, and the other to draw blood as many as 32 times per day.
(Id.). From February 27 to June 28, Ward travelled from Massachusetts to Maryland every
Tuesday. At NIH, he would check into a hospital room, and Dr. Shamburek would administer
ACP-501 on Wednesday morning and then draw his blood six times on Wednesday and another
six times on Thursday. (Id. ¶ 38).
According to the complaint, Drs. Shamburek and Remaley both told Ward that the ACP501 was materially improving his kidney function, even though the data as to the drug’s effects
was at best ambiguous. (Id. ¶¶ 39-40). Throughout the trial, at the counseling of Drs.
Shamburek and Remaley, Ward did not receive dialysis. (Id. ¶ 41).
In April or May 2013, Ward’s nephrologist, Dr. Valerie Price, told him that he could no
longer go without dialysis. (Id. ¶ 50). Nonetheless, he continued with the regimen.
In June 2013, the supply of ACP-501 at NIH was running low. (Id. ¶ 52). Drs.
Shamburek and Remaley convinced Ward to continue the trial at a lower dose. (Id.). That lower
dose caused Ward’s HDL-C to plummet. (Id. ¶ 53). He expressed a desire to drop out of the
trial if he could not continue to receive the higher dose. (Id.). According to the complaint, Drs.
Shamburek and Remaley induced him to remain in the trial with false promises of a new
shipment of ACP-501, meaning a return to the higher dose, and reversing his kidney disease.
(Id. ¶¶ 54, 56).
From July to September 2013, Ward again travelled from Massachusetts to Maryland
every Tuesday for treatment with the lower dose of ACP-501. (Id. ¶ 58). According to the

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complaint, his kidney function deteriorated on the lower dose. (Id. ¶ 59). In September, at the
urging of Drs. Price and Schaefer, Ward decided to withdraw from the trial in order to receive
needed dialysis. (Id. ¶¶ 59, 61). The complaint alleges that Dr. Shamburek then tried to
convince Ward to remain in the trial by telling him he had “interesting new information” and that
the lower dose was working to improve kidney function. (Id. ¶ 60). In October, Dr. Shamburek
allegedly called Ward and told him that he could not “just leave the program” and that he had to
“come back to the NIH.” (Id. ¶ 61). According to the complaint, in early fall 2013, Ward
“learned that the only effect of the ACP-501 experimentation on his kidney condition was to
delay, for many months, critical dialysis treatment.” (Id. ¶ 41).
B.

Procedural Background

Ward filed the complaint in this action in July 2016, in Massachusetts state court. The
complaint alleged claims for fraud (Count One); lack of informed consent (Count Two); unjust
enrichment (Count Three); violations of the Due Process Clause of the United States
Constitution, the Massachusetts Declaration of Rights, and the Nuremberg Code (Count Four);
violation of the Massachusetts Civil Rights Act (Count Five); and civil conspiracy (Count Six)
against all defendants.
Defendants Shamburek and Remaley removed the action to this court on the basis of 28
U.S.C. § 2679(d)(2). The Court granted the motion of defendants MedImmune and AstraZeneca
to dismiss the claims against them under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The
Court also granted the motion of defendants AlphaCore and Auerbach to dismiss the claims
against them under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction.
Pending before this Court are four motions. Defendant Schaefer has moved to transfer
this case to Superior Court to convene a medical malpractice tribunal and to compel plaintiff’s

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offer of proof. Plaintiff has moved to amend the complaint and take his own deposition.
II.

Motion to Transfer to Superior Court
Defendant Schaefer has moved to transfer this case to the Superior Court for the limited

purpose of convening a medical malpractice tribunal pursuant to Mass. Gen. Laws ch. 231, §
60B. That statute requires that “[e]very action for malpractice, error or mistake against a
provider of health care shall be heard by a tribunal,” where “the plaintiff shall present an offer of
proof and said tribunal shall determine if the evidence presented if properly substantiated is
sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the
plaintiff's case is merely an unfortunate medical result.” Id.
“If a finding is made for the defendant[s] . . . the plaintiff may pursue the claim through
the usual judicial process only upon filing bond in the amount of six thousand dollars.” Id. “If a
plaintiff declines to make an offer of proof, then the judge may assume that the plaintiff's claims
are entirely frivolous.” Denton v. Beth Israel Hosp., 392 Mass. 277, 280 (1984). Although this
does not necessarily require a dismissal of the medical malpractice claims, “a plaintiff may, in
effect, ‘waive’ the tribunal by declining to present an offer of proof,” and thus “assume[ ]
voluntarily the financial burden of the bond.” Id. at 279-81 & n. 4.
The purpose of the tribunal requirement is “to separate malpractice claims into two
groups: (1) those appropriate for judicial evaluation; and (2) those involving merely an
unfortunate medical result.” Leininger v. Franklin Med. Ctr, 404 Mass. 245, 247 (1989) (citing
Champagne v. Mass. Nurses Assoc., 403 Mass. 754, 756 (1989)). In enacting the statute, the
legislature sought to discourage frivolous medical malpractice claims and lower malpracticeinsurance premiums for medical providers. Vasa v. Compass Med., P.C., 456 Mass. 175, 178
(2010). To that end, cases alleging any cause of action grounded in medical malpractice must be

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referred to a malpractice tribunal. See Little v. Rosenthal, 376 Mass. 573, 576 (1978) (finding
claims under Mass. Gen. Laws ch. 93A against nursing home and doctor properly referred to
tribunal); Ruggiero v. Giamarco, 73 Mass. App. Ct. 743, 744 (2009) (“The tribunal requirement
applies to all treatment related claims, whether in tort, in contract, or under [Mass. Gen. Laws
ch.] 93A.”).
Not all claims arising in the medical context, however, must be referred to a medical
malpractice tribunal. For example, claims for violations of the Massachusetts Civil Rights Act
are not malpractice claims where the plaintiff does not allege that the violations directly
implicated the professional judgment or competence of a medical provider. Leininger, 404
Mass. at 248 (finding complaint against medical center and psychiatrist alleging civil rights and
tort claims arising from illegal involuntary commitment improperly referred to tribunal). See
also Koltin v. Beth Israel Deaconess Med. Ctr, 62 Mass. App. Ct. 920, 920 (2004) (involving
question of whether decision to terminate care was breach of contract).
All of plaintiff’s claims here, in substance, allege that the physicians made improper
medical decisions, and indeed deliberately experimented on him, in order to obtain data that
would be beneficial in selling the company that produced the drug. Allegedly, the physicians
tricked plaintiff into consenting to a treatment regimen that they knew would not cure or reverse
his kidney failure, and did so for personal profit or for other reasons not based on their
professional medical judgments. Thus, this matter cannot be resolved without resolving the issue
of whether the physicians made appropriate medical decisions, including appropriate disclosures
to plaintiff. Although the claim is framed in large part as a claim of fraud, “[t]here can be no
recovery for fraud unless someone provided improper medical care.” Cook v. Iacono, 2014 WL
8772072, at *1 (Mass. Sup. Ct. July 24, 2014). Accordingly, this matter involves malpractice

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claims that should be screened by a tribunal.
Plaintiff has opposed the motion on the ground that defendant Schaefer waived his right
to a tribunal. In his answer filed on November 16, 2016, defendant Schaefer “requested that a
medical tribunal be convened within 15 days . . . .” (Ans. of Def. Schaefer at 10). 4 Section 60B
requires that a tribunal be held “within 15 days after the defendant’s answer has been filed.” But
approximately ten months then elapsed before defendant Schaefer took any additional steps to
seek a tribunal. Because of that delay, plaintiff contends that the motion is a dilatory tactical
maneuver “designed . . . to increase litigation costs and litigation burden.” (Pl.’s Opp’n at 2-3).
That delay is, at a minimum, troublesome. Defendant Schaefer did not ignore the issue
entirely; instead, he requested a tribunal in his first responsive pleading. But he then did nothing
to actively seek a tribunal for another ten months. The referral to a tribunal will unquestionably
result in additional, and possibly lengthy, delays. 5
Nevertheless, plaintiff fails to cite any statutory provision or case law in support of the
assertion that the statutory tribunal requirement can be waived simply by failing to file a motion
after making a timely demand. Under the circumstances, the Court will not deem the delay to
have constituted a waiver, and the matter will be referred to the Superior Court for the convening
of a tribunal.
Nonetheless, the potential prejudice resulting from the delay remains an issue. Normally,
when a matter is referred to a malpractice tribunal, the litigation is stayed pending the outcome

4
Plaintiff contends that defendant Schaefer filed a “‘Request for Medical Tribunal Pursuant to . . . § 60B’
in the Superior Court on November 14, 2017 [sic].’” (Pl.’s Opp’n at 2). However, there is no entry on the state
court docket for November 14, 2016.

5

The Superior Court has recognized the “practical impossibility of complying with both the 15-day
mandate and the required composition of the tribunal in almost all cases.” (Proposed New Superior Court Rule 73,
at 1). It has proposed a new rule providing specifically that “[a]ny defendant’s failure to file a timely demand for
tribunal shall waive that defendant’s right to a tribunal.” (Proposed New Superior Court Rule 73, at 2).

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of the tribunal. However, where there has been substantial delay in convening a medical
malpractice tribunal, it is not an abuse of discretion to let some discovery go forward. See
O’Leary v. Nepomuceno, 44 Mass. App. Ct. 683, 685-86 (1998) (finding a two-year interval
between plaintiffs’ filing their complaint and the convening of the tribunal warranted an interim
order for discovery to proceed). See also Heintz v. Amaral, 2004 WL 1690389, at *1 (Mass.
Sup. Ct. July 15, 2004) (“[T]here is nothing contained in the tribunal statute that relieves [a
party] from the obligation to provide discovery prior to a tribunal hearing.”). That is not,
however, a hard and fast requirement.
Under the circumstances presented here, the Court will not stay this proceeding in its
entirety, or completely preclude discovery from going forward. 6 The extent to which discovery
may be permitted will be addressed at a future point in this proceeding. For present purposes, it
is sufficient to rule that discovery will not be stayed.
III.

Motion to Compel Offer of Proof
Defendant Schaefer has also moved to compel plaintiff to provide an offer of proof.

Under § 60B, in medical malpractice tribunal proceedings “the plaintiff shall present an offer of
proof.” The offer is used to determine if there is a legitimate question of “whether the medical
result obtained is consistent with the medical result allegedly promised by the health care
provider.” Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 521 (1979). An offer of
proof is a requirement of the tribunal, not this Court, and the motion accordingly will be denied,
without prejudice to its renewal in the Superior Court.

6

Normally, a motion seeking discovery in federal court is premature where the plaintiff is first required to
present an offer of proof to a medical malpractice tribunal. Taylor v. Radiology Assocs. of Norwood, Inc., 101
F.R.D. 345, 346 (D. Mass. 1984).

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IV.

Motion to Amend the Complaint
As noted, the claims against defendants AlphaCore and Auerbach have been dismissed

for lack of personal jurisdiction, and the claims against MedImmune and AstraZeneca have been
dismissed for failure to state a claim upon which relief can be granted. Plaintiff has now moved
to amend the complaint to attempt to reinstate those claims, ostensibly to correct the deficiencies
identified by the Court. The Court issued its ruling on those two motions on June 23, 2017, and
plaintiff moved to amend the complaint on July 21, 2017. He did not provide a proposed
amended complaint with the motion. The putative reinstated defendants (AlphaCore, Auerbach,
MedImmune, and AstraZeneca) all oppose the motion to amend on the grounds of futility and
undue delay.
A.

Legal Standard

Under Rule 15(a), a party may amend a “pleading” without leave of court in certain
relatively narrow circumstances. Fed. R. Civ. P. 15(a). 7 “In all other cases, a party may amend
its pleadings only with the opposing party's written consent or the court's leave. The court
should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Nonetheless,
amendments may be denied on the basis of “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). In determining whether to grant a
motion to amend, the court must examine the totality of the circumstances and “exercise its
informed discretion in constructing a balance of pertinent considerations.” Palmer v. Champion

7

A party may amend a pleading once as a matter of course within “21 days after serving it,” or “if the
pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1).

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Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006).
B.

Analysis

As noted, plaintiff has moved to amend his complaint to correct the deficiencies
identified by the Court in its memorandum and order granting the motions to dismiss. He has
not, however, provided a proposed amended complaint with his motion to amend. Nor has he
proffered any new facts in his motion to support his assertions concerning the issues of successor
liability and personal jurisdiction. It appears that he simply rehashes one of his previous
arguments, that AlphaCore ceased to exist and that defendants AstraZeneca and MedImmune are
AlphaCore’s successors.
This Court already found that argument wanting, as plaintiff simply alleged a legal
conclusion without supporting factual allegations. Defendants filed extensive briefing on the
motions to dismiss, and the Court undertook the work of reaching a decision on that motion.
Having lost that motion, plaintiff now seeks another chance to try to rectify the deficiencies.
The practice of waiting to amend a complaint until after the Court has ruled on a motion
to dismiss is troublesome, to say the least. As the First Circuit noted in ACA Fin. Guar. Corp. v.
Advest, Inc., 512 F.3d 46, 57 (1st Cir. 2008):
The plaintiffs argue that in the end, they were entitled to wait and see if their
amended complaint was rejected by the district court before being put to the costs
of filing a second amended complaint. They claim this would promote efficiency
in the judicial system. Plaintiffs have it exactly backwards—their methodology
would lead to delays, inefficiencies, and wasted work. The plaintiffs do not get
leisurely repeated bites at the apple, forcing a district judge to decide whether
each successive complaint was adequate . . . . Plaintiffs may not, having the
needed information, deliberately wait in the wings for a year and a half with
another amendment to a complaint should the court hold the first amended
complaint was insufficient. Such an approach would impose unnecessary costs
and inefficiencies on both the courts and party opponents. This court expressly
disapproved a similar tactic in James [v. Watt, 716 F.2d 71 (1st Cir. 1983)], and
we do so again. See id. at 78 (“Such a practice would dramatically undermine the
ordinary rules governing the finality of judicial decisions, and should not be

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sanctioned in the absence of compelling circumstances.” (citing 6 Wright &
Miller, Federal Practice and Procedure § 1489 (1971))).
Here, plaintiff was “put on notice of the deficiencies in the complaint by the motion to
dismiss. If [he] had something relevant to add, [he] should have moved to add it then.” Fire &
Police Pension Ass'n of Colo. v. Abiomed, Inc., 778 F.3d 228, 247 (1st Cir. 2015). Under the
circumstances, plaintiff has not provided a valid reason for his neglect and delay. Accordingly,
the motion to amend will be denied.
V.

Motion to Take Deposition
Finally, plaintiff seeks leave of the Court to take his deposition under Fed. R. Civ. P. 26.

Plaintiff suffers from a serious health condition, deficiency of the LCAT enzyme. (Pl.’s Mot. to
Take Deposition at 2). In addition, he has stage 5 kidney failure, which necessitates dialysis
treatments three times per week. (Id.). He contends that a “deposition under controlled
circumstances” is needed “to preserve his testimony before he loses the strength and ability to
testify.” (Id.).
The First Circuit has stated that “[u]nder Rule 26, the trial court is required to balance the
burden of proposed discovery against the likely benefit.” Gill v. Gulfstream Park Racing Ass’n,
399 F.3d 391, 400 (1st Cir. 2005). The Court has little doubt that plaintiff is seriously ill
(although plaintiff has not provided an affidavit from a treating physician or medical records to
substantiate the assertion that a deposition must be taken immediately). Preserving his testimony
by means of a deposition is likely desirable; the only real issue is whether it is premature. At this
time, however, little discovery has occurred. 8 Permitting plaintiff to undertake his deposition
now may prejudice the physician defendants, who without the benefit of completed discovery

8

It appears that some discovery has occurred, as both plaintiff and defendant Schaefer acknowledge that
part of plaintiff’s medical records have been disclosed.

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may be unable to effectively cross-examine plaintiff.
Accordingly, the motion to take plaintiff’s deposition appears to be premature and will be
denied without prejudice, subject to renewal upon changed circumstances, such as (for example)
a further decline in plaintiff’s health or the completion of sufficient discovery to permit effective
cross-examination.
VI.

Conclusion
For the foregoing reasons,

1.

Defendant Schaefer’s motion to transfer this case to Superior Court to convene a medical

malpractice tribunal is GRANTED in part.
This matter is hereby referred to the Massachusetts Superior Court Department of the
Trial Court for the limited purpose of conducting a medical malpractice tribunal pursuant to
Mass. Gen. Laws ch. 231, § 60B. Defendant Schaefer is hereby directed to take immediate
action to ensure that the medical malpractice tribunal is scheduled as promptly as possible. The
original file in this court will not be transferred to the Superior Court. Instead, the defendant is
responsible for the filing of the relevant pleadings in the Superior Court. Discovery in this
proceeding shall not, however, be stayed, subject to such further orders of the Court as may be
appropriate under the circumstances. Upon completion of all proceedings before the medical
malpractice tribunal, the parties shall file a status report with this Court with proposals for further
proceedings in this case.
2.

Defendant Schaefer’s motion to compel an offer of proof is DENIED.

3.

Plaintiff’s motion to amend the complaint is DENIED.

4.

Plaintiff’s motion to take his own deposition is DENIED without prejudice.

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So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: November 16, 2017

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