Opinion
21-P-455
05-05-2022
PATRICIA M. DUNN v. GENZYME CORPORATION.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The plaintiff, Patricia M. Dunn, appeals from the denial of her motion to set aside the dismissal of her personal injury and product liability claims against the defendant, Genzyme Corporation. The plaintiff's first amended complaint alleged that she suffered permanent injuries after receiving two injections of the defendant's product Synvisc-One, a Class III medical device subject to premarket approval pursuant to the Medical Device Amendments (MDA), 21 U.S.C. §§ 360c, 360h, 360j, and 360k. The defendant moved to dismiss, arguing that Federal law preempted the claims and alternatively that the plaintiff failed to sufficiently plead an entitlement to relief. The case was heard by the Supreme Judicial Court (SJC) which determined that the plaintiff's claims were not preempted, but nevertheless dismissed the complaint for failure to meet the pleading standard set forth in Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Dunn v. Genzyme Corp., 486 Mass. 713, 714 (2021). The plaintiff attempted to file a second amended complaint, but it was returned by the clerk with a notation that the complaint had been dismissed pursuant to the SJC's decision. She then filed a motion for relief from judgment, pursuant to Mass. R. Civ. P. 60 (b) (1) and (6), 365 Mass. 828 (1974), in order to file a second amended complaint complying with the requisite specificity for pleading her claims. The motion was denied. We discern no error of law or abuse of discretion, and we affirm the order denying the plaintiff's motion for relief from judgment.
Discussion.
1. Standard of review.
The denial of a motion for relief from judgment, pursuant to rule 60 (b), "will not be overturned, except upon a showing of a clear abuse of discretion." Scannell v. Ed. Ferreirinha & Irmao, LDA, 401 Mass. 155, 158 (1987). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). It is not an abuse of discretion "simply because a reviewing court might have reached a different result," Scannell, supra at 160, quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986); rather, so long as the motion judge acted "within the bounds of her discretion," our "inquiry is at an end." Scannell, supra.
2. Rule 60 (b) motion.
The plaintiff argues it was an abuse of discretion to deny her request for relief when her complaint was dismissed for a technical pleading deficiency. To prevail under rule 60 (b) (1), the plaintiff had the burden to show that her failure to plead with sufficiency stemmed from "excusable neglect" not from her "own carelessness." Scannell, 401 Mass. at 158, quoting Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 228 (1979). Alternatively, relief under rule 60 (b) (6) may be granted "when the vacating of judgment is justified by some reason other than those stated in subdivisions (1) through (5)" that presents "extraordinary circumstances" (citations omitted). Owens v. Mukendi, 448 Mass. 66, 71 (2006) .
Here, the plaintiff failed to demonstrate either excusable neglect or extraordinary circumstances warranting relief, as the plaintiff's claim hinges on a misinterpretation of the SJC's opinion. The plaintiff contends that she could not have complied with the requisite pleading standard prior to the issuance of the SJC's opinion. This claim is belied by the opinion as the SJC "conclude[d] that plaintiffs asserting parallel State law claims may do so with no greater degree of specificity than otherwise required under Iannacchino." Dunn, 486 Mass. at 714. The SJC did not alter the notice pleading standard. The failure to meet this well-established standard is neither excusable neglect nor an extraordinary circumstance. See Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Comm'n, 394 Mass. 233, 236 (1985) ("Rule 60 does not provide for general reconsideration of an order or a judgment .... Nor does it provide an avenue for challenging supposed legal errors") . Accordingly, the motion judge did not abuse her discretion by denying the plaintiff's motion.
The plaintiff's claim that the judge abused her discretion in denying the motion for relief because she did not consider the plaintiff's request under Mass. R. Civ. P. 60 (b) (1) is without merit. On review of the plaintiff's motion, the only argument advanced pursuant to Mass. R. Civ. P. 60 (b) (1) was that the judgment "entered as a result of her 'excusable neglect' in failing to include sufficient facts to meet the SJC's newly established criteria for asserting 'parallel' state law claims . . . ." The judge's ruling addressed this issue by stating that "[t]he Supreme Judicial Court . . .did not announce a new or heightened pleading standard." There was no abuse of discretion.
3. Attorney's fees.
The defendant seeks an award of appellate attorney's fees and costs pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), on the ground that the plaintiff's appeal is frivolous. See G. L. c. 211A, § 15. Because the plaintiff had "no reasonable expectation of a reversal," Allen v. Batchelder, 17 Mass.App.Ct. 453, 458 (1984), we agree that her appeal was frivolous, and an award of appellate attorney's fees and costs is appropriate. See Avery v. Steele, 414 Mass. 450, 455-457 (1993). Consistent with the requirements of Fabre v. Walton, 441 Mass. 9, 10 (2004), the defendant may file a request for appellate attorney's fees and costs, along with supporting documentation, within fourteen days of the issuance of the decision in this case. The plaintiff shall have fourteen days thereafter within which to respond.
Order denying motion for relief from judgment affirmed.
Blake, Lemire & Hershfang, JJ.
The panelists are listed in order of seniority.