Preview
Date Filed 9/29/2022 3:31 P
Superior Court - Middlesex
Docket Number 1681CV02906
24.2
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT
CIVIL ACTION
NO. 1681CV02906
RECEIVED
SURAYA AL UHEE, PPA SEJEDA BEGUM,
SEJEDA BEGUM, AND
MOHAMMAD NURAZZAMAN,
Plaintiffs,
9/29/2022
Vv.
BONNI STAHL, M.D.,
LYNNE CRAWFORD, N.P.,
CAROLYN JORDAN, N.P., AND
CAMBRIDGE HEALTH ALLIANCE,
Defendants.
PLAINTIFF’S OPPOSITION TO DEFENDANTS’
MOTION TO BIFURCATE THE TRIAL
NOW COME the plaintiffs, Suraya Al Uhee, PPA Sejeda Begum, Sejeda Begum, and
Mohammad Nurazzaman, and respectfully oppose the defendants’ Motion to Bifurcate the
Trial. Contrary to the defendants’ self-serving assumptions, bifurcation is likely to
unnecessarily lengthen the trial process as opposed to shorten it, as this Court has previously
ruled that material disputes of fact exist regarding the alleged immunity of the defendants.
Moreover, a focused discussion of state employment and potential immunity, prior to any
presentation of the underlying facts of the case, would prejudice the jury against the plaintiff,
implying that the defendants are entitled to immunity from their actions. Accordingly, the
plaintiff respectfully requests the motion be denied.
ARGUMENT
As the defendants assert, “Rule 42(b) ‘confers discretion upon trial judges to deal
with the exigencies of litigation by separating parties, claims, and issues in order to “secure
KO
Date Filed 9/29/2022 3:31 P
Superior Court - Middlesex
Docket Number 1681CV02906
the just, speedy, and inexpensive determination of every action.’” Defs’ Memo at 3 (quoting
Roddy & McNulty Ins. Agency. Inc. v. A.A. Proctor & Co.. Inc., 16 Mass. App. Ct. 525, 529
(1983)). Despite the Appeals Court recognizing three key considerations, the first
consideration listed by the Appeals Court — the interests of justice — is ignored by the
defendants throughout their motion. The defendants rely entirely on a self-serving claim of
alleged expediency and cost saving to support their motion. But even when the defendants’
motion is considered on their terms — i.e., by ignoring the interests of justice — the motion
fails to present a compelling reason for bifurcating the trial. Bifurcation will likely result in
the presentation of virtually all of the medical evidence in the case twice, and would
therefore greatly lengthen, not shorten, the trial. Furthermore, bifurcation of the trial would
be fundamentally unfair to the plaintiffs.
I. The Defendants’ Have Oversimplified the Factual Disputes
Necessary to Resolve their Immunity Claims and Bifurcation is
Likely to be Highly Inefficient
The defendants ignore their burden of demonstrating that they were subject to the
direction and control of the state entity. Diaz v. Brigham Medical Associates, 438 Mass. 317,
322 (2002) (citing Restatement (Third) of Agency § 220 (2)). That burden cannot be met by
the defendant’s scant recitation of what the partial trial would require: “The defendants
anticipate that each of the individual defendants would testify relatively briefly as to their
employment status. And a representative or representatives of Cambridge Health Alliance
would testify as to the status of that entity, the employment status of the three individual
defendants, and the failure of the plaintiffs to present properly their claim.” Defs’ Memo at 3-
4
But direction and control are not just about their employment status; the SJC has long
held that “[a] physician is not necessarily a public employee simply because a public entity
Date Filed 9/29/2022 3:31 P
Superior Court - Middlesex
Docket Number 1681CV02906
pays his or her salary, provides a retirement fund, or manages a vacation schedule.” Williams
v. Hartman, 413 Mass. 398 (1992). To the contrary, “the very nature of a physician’s
function tends to suggest that in most instances he will act as an independent contractor.”
Diaz, 438 Mass. 321 (quoting Kelly v. Rossi, 395 Mass. 659, 662, 663 (1985)). “Another
person, unless a physician himself, would have no right (or desire) to exercise control over
the details of the physician’s treatment of a patient; the profession is distinct and requires a
high level of skill and training; and the physician must use independent judgment.” Kelly,
395 Mass. at 662. Because the claim arises from the negligence of the doctors in practice, the
factfinder “must focus on those facts tending to show that, while working in the hospital[],
the doctor was not subject to the direction and control of the city.” Id. at 664. The key tule is
whether “[i]n the specific case of a physician, . whether a public employer directs and
controls the physician’s treatment of the patient.” Williams v. Hartman, 413 Mass. 398,
400 (1992) (emphasis added).
Determining direction and control over the treatment of the patient is going to
necessarily involve reviewing all the treatment decisions that were made, who made them,
when they were made, and why they were made—i.e., practically everything the jury is going
to have to evaluate to determine whether the standard of care was met. The issue of direction
and control in this case turns on the medical facts, the exercise of medical judgment, and the
underlying basis for the medical decision making that was alleged to be negligent in this
case. The question of direction and control cannot be resolved purely on the self-serving
testimony of the defendants and CHA’s representatives; it turns on medical actions and
decision making and whether those actions were subject to the direction and control of the
city. See Zucco v. Kane, 55 Mass. App. Ct. 76 (2002) (question presented is whether a
Date Filed 9/29/2022 3:31 P
Superior Court - Middlesex
Docket Number 1681CV02906
corporate employer exercises or has the right to direct and control the medical practitioner’s
delivery of clinical care to the patient).
As recognized by this Court in denying the defendants’ motion for summary
judgment on the issues that the defendants now claim can be disposed of in a bifurcated
micro-trial, there are serious, disputed issues of material fact that must be explored in
evidence and presented to a jury for resolution. This Court rejected the defendants’ overly
simplistic formulation of their alleged immunity claim at summary judgment, and there is no
reason to now accept such an overly simplistic view of the issue where it has already been
properly rejected. Accordingly, bifurcation of this trial will not result in any judicial
economy. To the contrary, if the defendants fail to meet their burden of proving direction and
control (as they did at the summary judgment stage), bifurcation of the trial will effectively
result in presenting all of the evidence of medical facts and medical decision making twice.
An unnecessary repetition of most of the evidence in the case would plainly result in
significant waste of judicial resources, and, therefore, the defendants’ request for bifurcation
should be denied.
Il. Allowing the Defendants to Present their Defense of Alleged Public
Employer Immunity Prior to the Presentation of the Plaintiffs’
Case Is Highly and Unfairly Prejudicial to the Plaintiffs
Tt is a centuries old standard that a plaintiff, who bears the burden of proving the
claim(s) she brings and must present her case to the jury, gets to open the trial with her
presentation of the evidence. Although a defendant is permitted an opening statement, the
defendant does not control the order of witnesses, presentation of evidence, or flow of
information until after the plaintiff rests. The defendants’ motion to bifurcate is an attempt to
usurp this right from the plaintiffs by asking the Court to require presentation of the
defendants’ alleged defenses first, before the plaintiffs are permitted to present their case.
Date Filed 9/29/2022 3:31 P
Superior Court - Middlesex
Docket Number 1681CV02906
Such a presentation would unfairly bias the jury in favor of the defendants by framing the
case as being substantively about the determination of the defendants’ employment status as
opposed to the determination of whether they committed medical negligence. Furthermore,
where bifurcation would likely result in the medical evidence in the case being presented
twice, the plaintiffs would be forced to re-live the trauma related to their daughter's
premature birth and subsequent injuries twice. For these reasons, the defendants’ motion
should be denied.
CONCLUSION
Given the inherently intertwined nature of the direction and control analysis with the
medical decision making, and the highly prejudicial effect of permitting the defendants to
present their purported defenses first, before the plaintiff has been permitted to present
evidence of the negligence at issue, neither the goal of efficiency nor the goal of justice
present reasons to bifurcate this trial.
WHEREFORE the plaintiffs, for the reasons stated above, respectfully request that
the defendants Motion to Bifurcate Trial be DENIED.
The Plaintiffs,
By their attorneys,
Andrew H. Miller
Robert M. Higgins
BBO # 567229
Andrew H. Miller
BBO# 682496
LUBIN & MEYER, P.C.
100 City Hall Plaza
Boston, Massachusetts 02108
(617) 720-4447
rhiggins@Jubinandmeyer.com
amiller@lubinandmeyer.com
Date Filed 9/29/2022 3:31 P
Superior Court - Middlesex
Docket Number 1681CV02906
CERTIFICATE OF SERVICE
I, Andrew H. Miller, do hereby certify that on this date, I served the within document,
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO BIFURCATE THE TRIAL
on all counsel of record, served via email per Mass. R. Civ. P. 5(b), to the following parties of
interest:
Edward F. Mahoney, Esquire
Robert E. Burgess, Esquire
Martin, Magnuson, McCarthy and Kenney, LLP
101 Merrimac Street
Boston, MA 02114
Ondrew
He Viller
Andrew H. Miller
Dated: September 29, 2022
Preview
Date Filed 9/29/2022 3:31 P Superior Court - Middlesex Docket Number 1681CV02906 24.2 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT CIVIL ACTION NO. 1681CV02906 RECEIVED SURAYA AL UHEE, PPA SEJEDA BEGUM, SEJEDA BEGUM, AND MOHAMMAD NURAZZAMAN, Plaintiffs, 9/29/2022 Vv. BONNI STAHL, M.D., LYNNE CRAWFORD, N.P., CAROLYN JORDAN, N.P., AND CAMBRIDGE HEALTH ALLIANCE, Defendants. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO BIFURCATE THE TRIAL NOW COME the plaintiffs, Suraya Al Uhee, PPA Sejeda Begum, Sejeda Begum, and Mohammad Nurazzaman, and respectfully oppose the defendants’ Motion to Bifurcate the Trial. Contrary to the defendants’ self-serving assumptions, bifurcation is likely to unnecessarily lengthen the trial process as opposed to shorten it, as this Court has previously ruled that material disputes of fact exist regarding the alleged immunity of the defendants. Moreover, a focused discussion of state employment and potential immunity, prior to any presentation of the underlying facts of the case, would prejudice the jury against the plaintiff, implying that the defendants are entitled to immunity from their actions. Accordingly, the plaintiff respectfully requests the motion be denied. ARGUMENT As the defendants assert, “Rule 42(b) ‘confers discretion upon trial judges to deal with the exigencies of litigation by separating parties, claims, and issues in order to “secure KO Date Filed 9/29/2022 3:31 P Superior Court - Middlesex Docket Number 1681CV02906 the just, speedy, and inexpensive determination of every action.’” Defs’ Memo at 3 (quoting Roddy & McNulty Ins. Agency. Inc. v. A.A. Proctor & Co.. Inc., 16 Mass. App. Ct. 525, 529 (1983)). Despite the Appeals Court recognizing three key considerations, the first consideration listed by the Appeals Court — the interests of justice — is ignored by the defendants throughout their motion. The defendants rely entirely on a self-serving claim of alleged expediency and cost saving to support their motion. But even when the defendants’ motion is considered on their terms — i.e., by ignoring the interests of justice — the motion fails to present a compelling reason for bifurcating the trial. Bifurcation will likely result in the presentation of virtually all of the medical evidence in the case twice, and would therefore greatly lengthen, not shorten, the trial. Furthermore, bifurcation of the trial would be fundamentally unfair to the plaintiffs. I. The Defendants’ Have Oversimplified the Factual Disputes Necessary to Resolve their Immunity Claims and Bifurcation is Likely to be Highly Inefficient The defendants ignore their burden of demonstrating that they were subject to the direction and control of the state entity. Diaz v. Brigham Medical Associates, 438 Mass. 317, 322 (2002) (citing Restatement (Third) of Agency § 220 (2)). That burden cannot be met by the defendant’s scant recitation of what the partial trial would require: “The defendants anticipate that each of the individual defendants would testify relatively briefly as to their employment status. And a representative or representatives of Cambridge Health Alliance would testify as to the status of that entity, the employment status of the three individual defendants, and the failure of the plaintiffs to present properly their claim.” Defs’ Memo at 3- 4 But direction and control are not just about their employment status; the SJC has long held that “[a] physician is not necessarily a public employee simply because a public entity Date Filed 9/29/2022 3:31 P Superior Court - Middlesex Docket Number 1681CV02906 pays his or her salary, provides a retirement fund, or manages a vacation schedule.” Williams v. Hartman, 413 Mass. 398 (1992). To the contrary, “the very nature of a physician’s function tends to suggest that in most instances he will act as an independent contractor.” Diaz, 438 Mass. 321 (quoting Kelly v. Rossi, 395 Mass. 659, 662, 663 (1985)). “Another person, unless a physician himself, would have no right (or desire) to exercise control over the details of the physician’s treatment of a patient; the profession is distinct and requires a high level of skill and training; and the physician must use independent judgment.” Kelly, 395 Mass. at 662. Because the claim arises from the negligence of the doctors in practice, the factfinder “must focus on those facts tending to show that, while working in the hospital[], the doctor was not subject to the direction and control of the city.” Id. at 664. The key tule is whether “[i]n the specific case of a physician, . whether a public employer directs and controls the physician’s treatment of the patient.” Williams v. Hartman, 413 Mass. 398, 400 (1992) (emphasis added). Determining direction and control over the treatment of the patient is going to necessarily involve reviewing all the treatment decisions that were made, who made them, when they were made, and why they were made—i.e., practically everything the jury is going to have to evaluate to determine whether the standard of care was met. The issue of direction and control in this case turns on the medical facts, the exercise of medical judgment, and the underlying basis for the medical decision making that was alleged to be negligent in this case. The question of direction and control cannot be resolved purely on the self-serving testimony of the defendants and CHA’s representatives; it turns on medical actions and decision making and whether those actions were subject to the direction and control of the city. See Zucco v. Kane, 55 Mass. App. Ct. 76 (2002) (question presented is whether a Date Filed 9/29/2022 3:31 P Superior Court - Middlesex Docket Number 1681CV02906 corporate employer exercises or has the right to direct and control the medical practitioner’s delivery of clinical care to the patient). As recognized by this Court in denying the defendants’ motion for summary judgment on the issues that the defendants now claim can be disposed of in a bifurcated micro-trial, there are serious, disputed issues of material fact that must be explored in evidence and presented to a jury for resolution. This Court rejected the defendants’ overly simplistic formulation of their alleged immunity claim at summary judgment, and there is no reason to now accept such an overly simplistic view of the issue where it has already been properly rejected. Accordingly, bifurcation of this trial will not result in any judicial economy. To the contrary, if the defendants fail to meet their burden of proving direction and control (as they did at the summary judgment stage), bifurcation of the trial will effectively result in presenting all of the evidence of medical facts and medical decision making twice. An unnecessary repetition of most of the evidence in the case would plainly result in significant waste of judicial resources, and, therefore, the defendants’ request for bifurcation should be denied. Il. Allowing the Defendants to Present their Defense of Alleged Public Employer Immunity Prior to the Presentation of the Plaintiffs’ Case Is Highly and Unfairly Prejudicial to the Plaintiffs Tt is a centuries old standard that a plaintiff, who bears the burden of proving the claim(s) she brings and must present her case to the jury, gets to open the trial with her presentation of the evidence. Although a defendant is permitted an opening statement, the defendant does not control the order of witnesses, presentation of evidence, or flow of information until after the plaintiff rests. The defendants’ motion to bifurcate is an attempt to usurp this right from the plaintiffs by asking the Court to require presentation of the defendants’ alleged defenses first, before the plaintiffs are permitted to present their case. Date Filed 9/29/2022 3:31 P Superior Court - Middlesex Docket Number 1681CV02906 Such a presentation would unfairly bias the jury in favor of the defendants by framing the case as being substantively about the determination of the defendants’ employment status as opposed to the determination of whether they committed medical negligence. Furthermore, where bifurcation would likely result in the medical evidence in the case being presented twice, the plaintiffs would be forced to re-live the trauma related to their daughter's premature birth and subsequent injuries twice. For these reasons, the defendants’ motion should be denied. CONCLUSION Given the inherently intertwined nature of the direction and control analysis with the medical decision making, and the highly prejudicial effect of permitting the defendants to present their purported defenses first, before the plaintiff has been permitted to present evidence of the negligence at issue, neither the goal of efficiency nor the goal of justice present reasons to bifurcate this trial. WHEREFORE the plaintiffs, for the reasons stated above, respectfully request that the defendants Motion to Bifurcate Trial be DENIED. The Plaintiffs, By their attorneys, Andrew H. Miller Robert M. Higgins BBO # 567229 Andrew H. Miller BBO# 682496 LUBIN & MEYER, P.C. 100 City Hall Plaza Boston, Massachusetts 02108 (617) 720-4447 rhiggins@Jubinandmeyer.com amiller@lubinandmeyer.com Date Filed 9/29/2022 3:31 P Superior Court - Middlesex Docket Number 1681CV02906 CERTIFICATE OF SERVICE I, Andrew H. Miller, do hereby certify that on this date, I served the within document, PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO BIFURCATE THE TRIAL on all counsel of record, served via email per Mass. R. Civ. P. 5(b), to the following parties of interest: Edward F. Mahoney, Esquire Robert E. Burgess, Esquire Martin, Magnuson, McCarthy and Kenney, LLP 101 Merrimac Street Boston, MA 02114 Ondrew He Viller Andrew H. Miller Dated: September 29, 2022