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SJC-12026

            DERRICK WASHINGTON   vs.   MARYJO GAGLIANI.


                          May 12, 2017.


Supreme Judicial Court, Superintendence of inferior courts.
     Medical Malpractice, Tribunal, Bond. Appeals Court,
     Jurisdiction. Superior Court, Jurisdiction. Jurisdiction,
     Superior Court.


      The petitioner, Derrick Washington, appeals from a
judgment of a single justice of the county court denying his
petition pursuant to G. L. c. 211, § 3. We affirm.

     In 2011, Washington commenced a medical malpractice action
in the United States District Court for the District of
Massachusetts against the respondent, Maryjo Gagliani, and
several other individuals. Gagliani requested review by a
medical malpractice tribunal pursuant to G. L. c. 231, § 60B,
and the case was referred to the Superior Court in Suffolk
County for that purpose. See Feinstein v. Massachusetts Gen.
Hosp., 643 F.2d 880, 888 (1st Cir. 1981).1 In its report issued
in September, 2014, the tribunal determined that Washington's
claim was not sufficient to raise a legitimate question of
liability appropriate for judicial inquiry, and therefore found
for Gagliani.

     Washington then filed a motion in the Superior Court to
reduce the amount of the bond that would be required for him to
pursue his claim in the face of the adverse tribunal ruling,
pursuant to G. L. c. 231, § 60B, sixth par. A judge in the

    1
       Maryjo Gagliani was the only defendant in the Federal
court action to request a medical malpractice tribunal and is
thus the only respondent here.
                                                                 2


Superior Court denied that motion. Washington next filed in the
Superior Court a notice of appeal that was dated October 19,
2014, and docketed on October 27, 2014. He sought to appeal to
the Appeals Court from the tribunal's ruling.2 The notice of
appeal was never processed, however, i.e., no record was
assembled in the Superior Court. Gagliani, for her part, filed
a motion in the Superior Court to dismiss Washington's complaint
for failure to post the bond. A judge in the Superior Court
purported to allow Gagliani's motion on December 24, 2014, and a
judgment of dismissal to that effect was entered on June 25,
2015. But see Clarke v. Heisey, 16 Mass. App. Ct. 976, 976
(1979) (similar procedural history; holding that Superior Court
"of course, could not dismiss an action brought in the Federal
court"). The matter was then transferred back to the Federal
court.

     Before the tribunal's report was officially sent back to
the Federal court, the Federal action had already moved forward.
After the tribunal issued its decision, Washington filed a
motion in the Federal action in October, 2014, to stay the
Federal proceedings pending his appeal in the State court.
Gagliani, in turn, filed a motion in the Federal action in
December, 2014, to dismiss the complaint against her on account
of Washington's failure to post a bond. In March, 2015,
Washington's motion to stay was denied and Gagliani's motion to
dismiss was allowed. Washington nonetheless continued to take
steps to pursue his appeal from the tribunal ruling to the
Appeals Court. When he learned from the Appeals Court, in
August 2015, that it had no record of his appeal, and that his
case had been sent by the Superior Court back to the Federal
court, he filed a petition for relief in the county court
pursuant to G. L. c. 211, § 3, seeking to have his case
reinstated in the Superior Court and to be permitted to proceed
with his appeal to the Appeals Court from the adverse tribunal
ruling.3 A single justice denied the petition.


     2
       When a medical malpractice action originates in the
Superior Court and a tribunal finds against the plaintiff, the
plaintiff has the option of declining to post the statutorily
required bond, suffering the dismissal of the action, and then
appealing to the Appeals Court to challenge the tribunal's
ruling. See McMahon v. Glixman, 379 Mass. 60, 62-64 (1979).
     3
       It is not entirely clear from the record before us, but it
appears that Washington may not have realized that the matter
had already been returned to the Federal court.
                                                                3


     Specifically, in his G. L. c. 211, § 3, petition,
Washington sought relief from the Superior Court's "failure to
docket and recognize his appeal of" the tribunal's ruling. At
that point, however, the State courts no longer had jurisdiction
over Washington's case. The Federal court had sent the case to
the Superior Court for the sole purpose of convening the medical
malpractice tribunal requested by Gagliani. See Feinstein, 643
F.2d at 885-887. After the tribunal issued its ruling, the
proper place for Washington to proceed was in the Federal
courts. See Clarke, 16 Mass. App. Ct. at 977. In the Clarke
case, which involves a similar procedural history, after the
tribunal had ruled in favor of the defendant, the plaintiffs did
not file a bond and instead sought to appeal to the Appeals
Court from the tribunal's ruling. Id. at 976. The Appeals
Court dismissed the appeal, noting that once the tribunal had
rendered its decision, "any further proceedings belonged in the
Federal court." Id.

     So too here. The Superior Court and the Appeals Court had
no jurisdiction after the tribunal's ruling to act further with
respect to that ruling. At most, the Superior Court might have
had the authority to rule on Washington's motion to reduce the
amount of the bond, but even that is questionable. See
Pallazola v. Rucker, 602 F. Supp. 459, 460 (D. Mass.1984)
(Superior Court judge who presided over tribunal denied
plaintiff's motion to waive bond; plaintiff then moved in
Federal court for reconsideration of tribunal ruling as well as
for reconsideration of action on motion to reduce bond). The
place for Washington to pursue his claims and to challenge the
tribunal's ruling, if he wished to do so, was in the Federal
courts. Indeed, as we have noted, the Federal court proceedings
continued even as Washington was attempting to pursue his appeal
to the Appeals Court.

     Washington can receive the review to which he is entitled
in the Federal courts. When the judgment in the Federal action
becomes final,4 he will have an opportunity to appeal from it and
challenge the dismissal of his claim against Gagliani, just as
he would have been entitled to do if the action had originated
in the State court. In short, he has not been prejudiced by any
of the events in the State courts that ensued after the tribunal
issued its decision.


     4
       It does not appear that any separate final judgment has
entered as to Gagliani. See Fed. R. Civ. P. 54(b). The Federal
action remains pending as to the other named defendants.
                                                                4


     For these reasons, there was no error in the single
justice's denial of Washington's G. L. c. 211, § 3, petition.

                                  Judgment affirmed.


    Derrick Washington, pro se.
    Tory A. Weigand for the defendant.
