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COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS Civil Action No. 16-1055-C
eats )
Cidalia D. Rybak 1 ay T we
Plaintiff, i 4 Pd dnd
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fiS
. BEDS ee
ATTEST)
Sarat Chandra Ummethala, D.D.S. " i tha oLeRK A
Defendant. }
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MOTION TO STRIKE INTERROGATORIES
PURSUANT TO SUPERIOR COURT RULE 30
NOW COMES the Defendant, Sarat Ummethala, DDS and respectfully requests that this
Honorable Court STRIKE interrogatories propounded by the Plaintiff. In support thereof, the
Defendant states as follows:
1. This is an action for alleged medical (dental) malpractice.
2. The Plaintiff alleges that in and about July, 2013, the Defendant failed to comply with the
standard of care in extracting upper teeth for placement of a denture, resulting in injuries
to arteries in her neck that manifested weeks later, and resulted in a stroke(s).
3. The Defendant asserts that he applied with the applicable standard of care at all relevant
times, and that nothing he did or allegedly failed to do caused or contributed to the
Plaintiff's claimed harms.
4. This case was filed on July 18, 2016.
5. The facts alleged in this case are few; the medicine is multi-faceted and complex.
6. After agreed service of an Amended Complaint the Defendant served an Answer of
November 3, 2016.Discovery History
7.
10.
11.
12.
13.
The Defendant propounded Interrogatories to the Plaintiff in the same mailing as his
Answer, with additional follow-up discovery in the ensuing months.
Plaintiff required multiple extensions of time to respond. Ultimately in July, 2017 when
no responses had been served and the Plaintiff's counsel had become non-responsive, the
defendant served a Motion to Compel and a Final Request for Answers to Interrogatories
pursuant to Mass. R. Civ. P. 33(a).
Plaintiff's counsel requested an additional extension of time, and eventually served
discovery responses in August 2017 — almost a year after the requests were propounded.
At no time in 2016 or 2017 did the Plaintiff serve discovery on the Defendant.
At the time the Defendant filed his Answer, he requested a Medical Malpractice Tribunal
pursuant to MGL Ch. 231 Section 60B (“Tribunal”). Due to the difficulty in locating a
medical member, the Court was unable to convene a Tribunal and the defendant filed
several additional requests over time.
On November 30, 2017, the Court convened a hearing on an unrelated Motion filed by
the Defendant, seeking records held by a third-party. At that time, the Defendant also
served an additional request for Tribunal, and suggested the Court explore applying
newly promulgated Superior Court Rule 73 to this matter — which would require the
Plaintiff to produce an Offer of Proof in January, 2018.
The Plaintiff then filed an Opposition to the Defendant’s request for application of Rule
73'. In that filing, the plaintiff discussed the defendant’s discovery efforts, seemingly in
an effort to vitiate the need for a Tribunal (to which the defendant is entitled by statute).
‘The Rule 73 Request was allowed, as was the discovery Motion. The Defendants demand for Tribunal Hearing is
due on February 14, 2018.14. After oral argument that day the parties discussed discovery status. The plaintiff's
counsel indicated she was in the habit of not conducting discovery until after a Tribunal
had been convened. Defense counsel expressed understanding, but unwillingness to lose
a year and a half of the discovery period (the discovery deadline runs on July 7, 2018)
pending a Tribunal in this case.
15. On December 21, 2017, the Court issued an Order pursuant to Superior Court Rule 73 for
the Plaintiff to produce an Offer of Proof by January 16, 2018.
16. Plaintiff filed an Offer of Proof on January 16, 2018. On January 18, 2018, one year and
six months after filing the Complaint, she for the first time propounded written discovery
to the Defendant.
17. That discovery is not timely.
Argument
18. Superior Court Rule 30 (“Rule 30”) provides that a party propound interrogatories — if
they choose to do so — within one (1) year of the date of filing, absent a standing Order or
a discovery order specific to the case. See Sup. Ct. R. 30.
19, Rule 30 was first promulgated around the same time as Standing Order 1-88, which
began applying time standards to cases as “an attack on excessive delay ... “. Standing
Order 1-88(A). 1-88 sets an ultimate discovery deadline, but does not rescind Superior
Court Rule 30.
20. Rule 30 is rarely litigated, because most parties conduct discovery assiduously.
However, in a recent unreported Rule 1:28 Massachusetts Appeals Court opinion the
court upheld a Superior Court Protective Order. That Order, based on Rule 30, barred a21.
22.
23,
24,
25.
26.
27,
plaintiff from serving interrogatories beyond the one-year mark. See Reed v. Newburger,
2017 Mass.App.Ct. Unpub. $10 (Aug, 25, 2017), attached hereto as Exhibit A. The
plaintiff in Reed served interrogatories one year and one month after the Rule 30
deadline.
In that ruling, the court noted that the plaintiff provided no explanation for her failure to
serve discovery.
Here, we have an explanation. The Plaintiff knowingly and voluntarily elected not to
propound any discovery until a Tribunal had been convened — and then opposed the
Defendant’s request to accelerate the Tribunal process (in part by referencing the
discovery he had undertaken), One would intuit this to mean counsel does not wish to
spend money on her cases until she knows they will proceed to trial.
Defense counsel, however has an obligation of zealous advocacy and a duty to protect her
client’s interests. It was not possible, in the context of this complex medical malpractice
action, to lose a year and a half of the discovery timeline waiting for the Plaintiff to act.
Instead, the Defendant has taken the burden of discovering the entire case.
Plaintiff has not taken a deposition, served a single subpoena for records, nor has she
provided a single authorization for release of records outside of those expressly requested
by the Defendant.
Plaintiff also required extensive pressure to respond to discovery that had been
propounded to her, resulting in repeated extensions, the need for multiple pieces of Rule
9C correspondence , a Motion to Compel and a Final Request for Interrogatories.
The Defendant has spent well over a year, and has issued over 100 pieces of
correspondence to various providers — many of whom the Plaintiff had forgotten existedor denied having seen — serving and following up on authorizations (which the Plaintiff it
is acknowledged provided with courtesy and without objection).
28. The Defendant then spent months pouring over the resulting > 4,000 pages of medical
records to identify still other providers, leading to the additional discovery of hundreds of
pages more of relevant records. This is in addition to discovery of employment, tax,
disability and income records, all discovered by the defense.
29. Despite the parameters of Superior Court Rule 30, the Plaintiff now propounds written
discovery. That discovery is untimely.
Conclusion
30. The Defendant seeks to avoid further undue delay
31. The Plaintiff is the master of her own discovery strategy. She made her choices, and she
should be bound to them.
32. The Defendant has taken the burden of discovering this case.
33. The Plaintiff should not now be allowed to add to that burden, over and above and
outside the parameters of Superior Court Rule 30, at her election and fiscal convenience.
WHEREFORE, the Defendant respectfully requests this Honorable Court STRIKE the
interrogatories propounded by the Plaintiff.
The Defendant,
SARAT CHANDRA UMMETHALA, DDS
By his Attorneys,
Date: ey 2, oan = <—
XQ par Judith Feinberg AlbNght, Esq., BBO# 647511
Devine Millimet & Branch, PA
2 Oliver Street, 10" floor
Boston MA 02109
617-778-7500
jalbright@devinemillimet.com
5CERTIFICATE OF SERVICE
Thereby certify that on this date I have caused a copy of the foregoing to be forwarded by
United States mail, first class, postage prepaid, to all counsel of record.
Date: February 2, 2018
repr fiero Judith Feinberg Albright, Esq.EXHIBIT ANo Shepard’s Signal™
As of: February 1, 2018 7:57 PM Z
Reed v. Newburger
Appeals Court of Massachusetts
August 25, 2017, Entered
16-P-738
Reporter
2017 Mass. App. Unpub. LEXIS 810 *, 92 Mass. App. Ct. 1104; 2017 WL 3649034
AARON ZACHARY REED vs. JANE W. NEWBURGER &
others," :
Notice: SUMMARY DECISIONS ISSUED BY THE
APPEALS COURT PURSUANT TO ITS 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 1:28
ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED
FOR !TS 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, 881 N.E.2d 792 (2008).
PUBLISHED IN TABLE FORMAT IN ‘THE
MASSACHUSETTS APPEALS COURT REPORTS.
Disposition: Judgment affirmed.
Core Terms
summary judgment, defendants’, protective order,
cardiac
Judges: Trainor, Vuono & Sullivan, JJ. [*4]
Opinion
The plaintiff, Aaron Zachary Reed, appeals from a
‘Mark E. Alexander, Kathleen M. Solly, and Children's
Hospital Boston.
judgment entered following an order allowing the
defendants’ motions for summary judgment pursuant to
Mass.R.Civ.P. 56, 365 Mass, 824 (1974). We affirm.
Background. On December 1, 2010, the plaintiff, then
fifteen years old, underwent a nuclear stress test at
Children's Hospital Boston. After he finished his
exercise on the treadmill, the plaintiff experienced what
he alleged to be a “cardiac event" and what the
defendant Mark Alexander, a pediatric cardiologist,
diagnosed as a "sinus bradycardia, post exercise
cardio-inhibitory syncopal event."2
Discussion. 1. Summary judgment. In his complaint, the
plaintiff alleged, in part, that defendant Kathleen Solly, a
licensed exercise physiologist, did not alert appropriate
personnel to his “cardiac event" and did not initiate
basic life support techniques; that Alexander
inaccurately diagnosed him with syncope; and that Jane
Newburger, a pediatric cardiologist, did not follow the
appropriate standards in treating his “cardiac event." He
argues on appeal that the affidavits of Thomas J.
Berger, a cardiac surgeon, and Kenneth Salzer, a
paramedic, were sufficient to withstand the
defendants’ [*2] motions for summary judgment.5 We
disagree.
"(A] party moving for summary judgment in a case in
which the opposing party will have the burden of proof
at trial is entitled to summary judgment if he
demonstrates, by reference to material described in
2The plaintiff previously filed suit against his health care
providers in Louisiana in connection with a stress test he
underwent in 2009 that caused him to experience a vasovagal
syncope response. His complaint in the present case alleges,
among other things, that Alexander conspired with the
plaintiffs Louisiana health care providers.
31n his brief, the plaintiff points to his pro se status. However, it
is well established that a pro se party is held to the same
standard as one represented by counsel. Maza_v.
Commonwealth, 423 Mass, 1006, 6
Judith AlbrightPage 2 of 3
2017 Mass. App. Unpub. LEXIS 810, *2
Mass. R. Civ. P. 56(c), unmet by countervailing
materials, that the party opposing the motion has no
reasonable expectation of proving an essential element
of that party's case." Kourouvacilis v. General Motors
Corp, 410 Mass. 706, 716, 575 N.E.2d 734 (1991).
"To prevail on a claim of medical malpractice, a plaintiff
must establish the applicable standard of care and
demonstrate both that a defendant [health care provider]
breached that standard, and that this breach caused the
patient's harm." Palandjian v. Foster, 446 Mass. 100,
104, 842 N.E.2d 916 (2006). The standard of care is
“what the average qualified [health care provider] would
do in a particular situation." /d. at 105.
“In determining whether an expert is qualified to testify
regarding the proper standard of care, [t]he crucial issue
is whether the witness has sufficient education, training,
experience and familiarity with the subject matter of the
testimony." /d. at 106 (quotations omitted). As to the
paramedic, Salzer, he is not qualified to testify regarding
the actions of the two pediatric cardiologists, and it is
doubtful, based on the record before us, [*3] that he is
qualified to testify concerning the actions of a licensed
exercise physiologist. See ibid.
Further, the affidavits of Salzer and Berger, presented
by the plaintiff, suffer from other fatal deficiencies. The
affidavits fail to indicate whether the experts are familiar
with the 2010 standards of care for a pediatric
cardiologist and an exercise physiologist and do not
make any mention of the individual defendants in this
case. In addition, the experts fail to opine that the
defendants violated the standards of care applicable to
them, do not identify the plaintiffs injuries and damages,
and do not state that the defendants caused the
plaintiffs harm. See Benson v, Massachusetts Gen.
Hosp., 49 Mass. App. Ct. 530, 533-534, 731 N.E.2d 85
(2000).
We also reject the plaintiff's argument that no expert
testimony was required in this case. Expert testimony is
generally required to prove medical malpractice. See
Palandjian v. Foster, supra at 105-106. “It is only in
exceptional cases that a jury . . . may without the aid of
expert medical opinion determine whether the conduct
of a physician toward a patient is violative of the special
duty which the law imposes .. . ." /d. at 106 (quotations
omitted). Here, the plaintiff was a patient with complex
cardiac issues and the defendants’ alleged [*4]
negligence was not so obvious that it lay within the
common knowledge of the jurors. See Haggerty v.
McCarthy, 344 Mass. 136, 139-140, 181 N.E.2d 562
(1962); Anderson v. Attar, 65 Mass. App. Ct. 910, 911,
841 N.E.2d 1286 (2006).4 Moreover, the jurors would
not be able to determine, without expert opinion, what
damages, if any, were caused by the defendants.
We also disagree with the plaintiff's claim that summary
judgment was improper because discovery “was just
getting under way." As the record reflects, the plaintiff
did not file an affidavit pursuant to Mass.R.Civ.P_ 56(A,
365 Mass. 824 (1974), in response to the defendants’
motions for summary judgment. See Alphas Co. v.
Kilduff, 72 Mass. App. Ct. 104, 107-108, 888 N.E.2d
1003 (2008).
2. Protective orders. The plaintiff argues that the judge
erred in allowing the defendants' motions for protective
orders in response to his service of interrogatories on
them. We disagree.
"[T]he conduct and scope of discovery and protective
orders are issues within the sound discretion of the
motion or trial judge." Hanover ins. Co. v. Sutton, 46
Mass. App. Ct. 153,159, 705 N.E.2d 279 (1999). Here,
the judge allowed the defendants’ motions for protective
orders, reasoning that pursuant to Superior Court Rule
30, the interrogatories were to be served within one year
of the filing of the complaint, which would be December
29, 2014; that this period had passed; that the plaintiff
offered no explanation for the delay; and that it was too
fate in the life of the case to permit him to [*5] do so.5
There was no abuse of discretion in the judge's
allowance of the motions for protective orders in this
case. Further, because the plaintiff would not be able to
prove his case based on the fatal deficiencies in the
affidavits of his experts, he suffered no prejudice from
the allowance of defendants’ motions for protective
orders. See id. at 764 ("[WJe do not interfere with the
Judge's exercise of discretion'in the absence of a
showing of prejudicial error resulting from an abuse of
discretion").
4The plaintiff makes a one-sentence reference to “scholarly
articles referenced in [his] oppositions to summary judgment
and in his offer of proof* to support his claim that expert
testimony was not required. However, this does not constitute
reasoned appellate argument supported by relevant legal
authorities. See Mass. RAP. 16(a)(4), as amended, 367 Mass
921 (1975).
5 Although the due date for the plaintiff to serve interrogatories
on the defendants under Rule 30 was December 29, 2014, the
plaintiff did not serve his interrogatories on the defendants
until January 15, 2016.
Judith AlbrightPage 3 of 3
2017 Mass. App. Unpub. LEXIS 810, *5
3. Order on motion fo compel. The plaintiff argues that
"(t]he court erred in allowing [Alexander's] motion to
compel the plaintiff to attend a deposition in Boston,
MA," and that this order and "any sanctions applied to
him" should be vacated. Where the plaintiff did not
appear for the deposition and does not identify any
sanctions against him for his failure to do so, and where
summary judgment for Alexander was granted on other
grounds, we need not address this claim any further.
See ibid.
Judgment affirmed.
By the Court (Trainor, Vuono & Sullivan, JJ.§),
Entered: August 25, 2017.
End of Document
® The panelists are listed in order of seniority.
Judith Albright
Preview
& os s rw COMMONWEALTH OF MASSACHUSETTS WORCESTER, SS Civil Action No. 16-1055-C eats ) Cidalia D. Rybak 1 ay T we Plaintiff, i 4 Pd dnd ) fiS . BEDS ee ATTEST) Sarat Chandra Ummethala, D.D.S. " i tha oLeRK A Defendant. } ) MOTION TO STRIKE INTERROGATORIES PURSUANT TO SUPERIOR COURT RULE 30 NOW COMES the Defendant, Sarat Ummethala, DDS and respectfully requests that this Honorable Court STRIKE interrogatories propounded by the Plaintiff. In support thereof, the Defendant states as follows: 1. This is an action for alleged medical (dental) malpractice. 2. The Plaintiff alleges that in and about July, 2013, the Defendant failed to comply with the standard of care in extracting upper teeth for placement of a denture, resulting in injuries to arteries in her neck that manifested weeks later, and resulted in a stroke(s). 3. The Defendant asserts that he applied with the applicable standard of care at all relevant times, and that nothing he did or allegedly failed to do caused or contributed to the Plaintiff's claimed harms. 4. This case was filed on July 18, 2016. 5. The facts alleged in this case are few; the medicine is multi-faceted and complex. 6. After agreed service of an Amended Complaint the Defendant served an Answer of November 3, 2016.Discovery History 7. 10. 11. 12. 13. The Defendant propounded Interrogatories to the Plaintiff in the same mailing as his Answer, with additional follow-up discovery in the ensuing months. Plaintiff required multiple extensions of time to respond. Ultimately in July, 2017 when no responses had been served and the Plaintiff's counsel had become non-responsive, the defendant served a Motion to Compel and a Final Request for Answers to Interrogatories pursuant to Mass. R. Civ. P. 33(a). Plaintiff's counsel requested an additional extension of time, and eventually served discovery responses in August 2017 — almost a year after the requests were propounded. At no time in 2016 or 2017 did the Plaintiff serve discovery on the Defendant. At the time the Defendant filed his Answer, he requested a Medical Malpractice Tribunal pursuant to MGL Ch. 231 Section 60B (“Tribunal”). Due to the difficulty in locating a medical member, the Court was unable to convene a Tribunal and the defendant filed several additional requests over time. On November 30, 2017, the Court convened a hearing on an unrelated Motion filed by the Defendant, seeking records held by a third-party. At that time, the Defendant also served an additional request for Tribunal, and suggested the Court explore applying newly promulgated Superior Court Rule 73 to this matter — which would require the Plaintiff to produce an Offer of Proof in January, 2018. The Plaintiff then filed an Opposition to the Defendant’s request for application of Rule 73'. In that filing, the plaintiff discussed the defendant’s discovery efforts, seemingly in an effort to vitiate the need for a Tribunal (to which the defendant is entitled by statute). ‘The Rule 73 Request was allowed, as was the discovery Motion. The Defendants demand for Tribunal Hearing is due on February 14, 2018.14. After oral argument that day the parties discussed discovery status. The plaintiff's counsel indicated she was in the habit of not conducting discovery until after a Tribunal had been convened. Defense counsel expressed understanding, but unwillingness to lose a year and a half of the discovery period (the discovery deadline runs on July 7, 2018) pending a Tribunal in this case. 15. On December 21, 2017, the Court issued an Order pursuant to Superior Court Rule 73 for the Plaintiff to produce an Offer of Proof by January 16, 2018. 16. Plaintiff filed an Offer of Proof on January 16, 2018. On January 18, 2018, one year and six months after filing the Complaint, she for the first time propounded written discovery to the Defendant. 17. That discovery is not timely. Argument 18. Superior Court Rule 30 (“Rule 30”) provides that a party propound interrogatories — if they choose to do so — within one (1) year of the date of filing, absent a standing Order or a discovery order specific to the case. See Sup. Ct. R. 30. 19, Rule 30 was first promulgated around the same time as Standing Order 1-88, which began applying time standards to cases as “an attack on excessive delay ... “. Standing Order 1-88(A). 1-88 sets an ultimate discovery deadline, but does not rescind Superior Court Rule 30. 20. Rule 30 is rarely litigated, because most parties conduct discovery assiduously. However, in a recent unreported Rule 1:28 Massachusetts Appeals Court opinion the court upheld a Superior Court Protective Order. That Order, based on Rule 30, barred a21. 22. 23, 24, 25. 26. 27, plaintiff from serving interrogatories beyond the one-year mark. See Reed v. Newburger, 2017 Mass.App.Ct. Unpub. $10 (Aug, 25, 2017), attached hereto as Exhibit A. The plaintiff in Reed served interrogatories one year and one month after the Rule 30 deadline. In that ruling, the court noted that the plaintiff provided no explanation for her failure to serve discovery. Here, we have an explanation. The Plaintiff knowingly and voluntarily elected not to propound any discovery until a Tribunal had been convened — and then opposed the Defendant’s request to accelerate the Tribunal process (in part by referencing the discovery he had undertaken), One would intuit this to mean counsel does not wish to spend money on her cases until she knows they will proceed to trial. Defense counsel, however has an obligation of zealous advocacy and a duty to protect her client’s interests. It was not possible, in the context of this complex medical malpractice action, to lose a year and a half of the discovery timeline waiting for the Plaintiff to act. Instead, the Defendant has taken the burden of discovering the entire case. Plaintiff has not taken a deposition, served a single subpoena for records, nor has she provided a single authorization for release of records outside of those expressly requested by the Defendant. Plaintiff also required extensive pressure to respond to discovery that had been propounded to her, resulting in repeated extensions, the need for multiple pieces of Rule 9C correspondence , a Motion to Compel and a Final Request for Interrogatories. The Defendant has spent well over a year, and has issued over 100 pieces of correspondence to various providers — many of whom the Plaintiff had forgotten existedor denied having seen — serving and following up on authorizations (which the Plaintiff it is acknowledged provided with courtesy and without objection). 28. The Defendant then spent months pouring over the resulting > 4,000 pages of medical records to identify still other providers, leading to the additional discovery of hundreds of pages more of relevant records. This is in addition to discovery of employment, tax, disability and income records, all discovered by the defense. 29. Despite the parameters of Superior Court Rule 30, the Plaintiff now propounds written discovery. That discovery is untimely. Conclusion 30. The Defendant seeks to avoid further undue delay 31. The Plaintiff is the master of her own discovery strategy. She made her choices, and she should be bound to them. 32. The Defendant has taken the burden of discovering this case. 33. The Plaintiff should not now be allowed to add to that burden, over and above and outside the parameters of Superior Court Rule 30, at her election and fiscal convenience. WHEREFORE, the Defendant respectfully requests this Honorable Court STRIKE the interrogatories propounded by the Plaintiff. The Defendant, SARAT CHANDRA UMMETHALA, DDS By his Attorneys, Date: ey 2, oan = <— XQ par Judith Feinberg AlbNght, Esq., BBO# 647511 Devine Millimet & Branch, PA 2 Oliver Street, 10" floor Boston MA 02109 617-778-7500 jalbright@devinemillimet.com 5CERTIFICATE OF SERVICE Thereby certify that on this date I have caused a copy of the foregoing to be forwarded by United States mail, first class, postage prepaid, to all counsel of record. Date: February 2, 2018 repr fiero Judith Feinberg Albright, Esq.EXHIBIT ANo Shepard’s Signal™ As of: February 1, 2018 7:57 PM Z Reed v. Newburger Appeals Court of Massachusetts August 25, 2017, Entered 16-P-738 Reporter 2017 Mass. App. Unpub. LEXIS 810 *, 92 Mass. App. Ct. 1104; 2017 WL 3649034 AARON ZACHARY REED vs. JANE W. NEWBURGER & others," : Notice: SUMMARY DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS 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 1:28 ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR !TS 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, 881 N.E.2d 792 (2008). PUBLISHED IN TABLE FORMAT IN ‘THE MASSACHUSETTS APPEALS COURT REPORTS. Disposition: Judgment affirmed. Core Terms summary judgment, defendants’, protective order, cardiac Judges: Trainor, Vuono & Sullivan, JJ. [*4] Opinion The plaintiff, Aaron Zachary Reed, appeals from a ‘Mark E. Alexander, Kathleen M. Solly, and Children's Hospital Boston. judgment entered following an order allowing the defendants’ motions for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass, 824 (1974). We affirm. Background. On December 1, 2010, the plaintiff, then fifteen years old, underwent a nuclear stress test at Children's Hospital Boston. After he finished his exercise on the treadmill, the plaintiff experienced what he alleged to be a “cardiac event" and what the defendant Mark Alexander, a pediatric cardiologist, diagnosed as a "sinus bradycardia, post exercise cardio-inhibitory syncopal event."2 Discussion. 1. Summary judgment. In his complaint, the plaintiff alleged, in part, that defendant Kathleen Solly, a licensed exercise physiologist, did not alert appropriate personnel to his “cardiac event" and did not initiate basic life support techniques; that Alexander inaccurately diagnosed him with syncope; and that Jane Newburger, a pediatric cardiologist, did not follow the appropriate standards in treating his “cardiac event." He argues on appeal that the affidavits of Thomas J. Berger, a cardiac surgeon, and Kenneth Salzer, a paramedic, were sufficient to withstand the defendants’ [*2] motions for summary judgment.5 We disagree. "(A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in 2The plaintiff previously filed suit against his health care providers in Louisiana in connection with a stress test he underwent in 2009 that caused him to experience a vasovagal syncope response. His complaint in the present case alleges, among other things, that Alexander conspired with the plaintiffs Louisiana health care providers. 31n his brief, the plaintiff points to his pro se status. However, it is well established that a pro se party is held to the same standard as one represented by counsel. Maza_v. Commonwealth, 423 Mass, 1006, 6 Judith AlbrightPage 2 of 3 2017 Mass. App. Unpub. LEXIS 810, *2 Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp, 410 Mass. 706, 716, 575 N.E.2d 734 (1991). "To prevail on a claim of medical malpractice, a plaintiff must establish the applicable standard of care and demonstrate both that a defendant [health care provider] breached that standard, and that this breach caused the patient's harm." Palandjian v. Foster, 446 Mass. 100, 104, 842 N.E.2d 916 (2006). The standard of care is “what the average qualified [health care provider] would do in a particular situation." /d. at 105. “In determining whether an expert is qualified to testify regarding the proper standard of care, [t]he crucial issue is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony." /d. at 106 (quotations omitted). As to the paramedic, Salzer, he is not qualified to testify regarding the actions of the two pediatric cardiologists, and it is doubtful, based on the record before us, [*3] that he is qualified to testify concerning the actions of a licensed exercise physiologist. See ibid. Further, the affidavits of Salzer and Berger, presented by the plaintiff, suffer from other fatal deficiencies. The affidavits fail to indicate whether the experts are familiar with the 2010 standards of care for a pediatric cardiologist and an exercise physiologist and do not make any mention of the individual defendants in this case. In addition, the experts fail to opine that the defendants violated the standards of care applicable to them, do not identify the plaintiffs injuries and damages, and do not state that the defendants caused the plaintiffs harm. See Benson v, Massachusetts Gen. Hosp., 49 Mass. App. Ct. 530, 533-534, 731 N.E.2d 85 (2000). We also reject the plaintiff's argument that no expert testimony was required in this case. Expert testimony is generally required to prove medical malpractice. See Palandjian v. Foster, supra at 105-106. “It is only in exceptional cases that a jury . . . may without the aid of expert medical opinion determine whether the conduct of a physician toward a patient is violative of the special duty which the law imposes .. . ." /d. at 106 (quotations omitted). Here, the plaintiff was a patient with complex cardiac issues and the defendants’ alleged [*4] negligence was not so obvious that it lay within the common knowledge of the jurors. See Haggerty v. McCarthy, 344 Mass. 136, 139-140, 181 N.E.2d 562 (1962); Anderson v. Attar, 65 Mass. App. Ct. 910, 911, 841 N.E.2d 1286 (2006).4 Moreover, the jurors would not be able to determine, without expert opinion, what damages, if any, were caused by the defendants. We also disagree with the plaintiff's claim that summary judgment was improper because discovery “was just getting under way." As the record reflects, the plaintiff did not file an affidavit pursuant to Mass.R.Civ.P_ 56(A, 365 Mass. 824 (1974), in response to the defendants’ motions for summary judgment. See Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 107-108, 888 N.E.2d 1003 (2008). 2. Protective orders. The plaintiff argues that the judge erred in allowing the defendants' motions for protective orders in response to his service of interrogatories on them. We disagree. "[T]he conduct and scope of discovery and protective orders are issues within the sound discretion of the motion or trial judge." Hanover ins. Co. v. Sutton, 46 Mass. App. Ct. 153,159, 705 N.E.2d 279 (1999). Here, the judge allowed the defendants’ motions for protective orders, reasoning that pursuant to Superior Court Rule 30, the interrogatories were to be served within one year of the filing of the complaint, which would be December 29, 2014; that this period had passed; that the plaintiff offered no explanation for the delay; and that it was too fate in the life of the case to permit him to [*5] do so.5 There was no abuse of discretion in the judge's allowance of the motions for protective orders in this case. Further, because the plaintiff would not be able to prove his case based on the fatal deficiencies in the affidavits of his experts, he suffered no prejudice from the allowance of defendants’ motions for protective orders. See id. at 764 ("[WJe do not interfere with the Judge's exercise of discretion'in the absence of a showing of prejudicial error resulting from an abuse of discretion"). 4The plaintiff makes a one-sentence reference to “scholarly articles referenced in [his] oppositions to summary judgment and in his offer of proof* to support his claim that expert testimony was not required. However, this does not constitute reasoned appellate argument supported by relevant legal authorities. See Mass. RAP. 16(a)(4), as amended, 367 Mass 921 (1975). 5 Although the due date for the plaintiff to serve interrogatories on the defendants under Rule 30 was December 29, 2014, the plaintiff did not serve his interrogatories on the defendants until January 15, 2016. Judith AlbrightPage 3 of 3 2017 Mass. App. Unpub. LEXIS 810, *5 3. Order on motion fo compel. The plaintiff argues that "(t]he court erred in allowing [Alexander's] motion to compel the plaintiff to attend a deposition in Boston, MA," and that this order and "any sanctions applied to him" should be vacated. Where the plaintiff did not appear for the deposition and does not identify any sanctions against him for his failure to do so, and where summary judgment for Alexander was granted on other grounds, we need not address this claim any further. See ibid. Judgment affirmed. By the Court (Trainor, Vuono & Sullivan, JJ.§), Entered: August 25, 2017. End of Document ® The panelists are listed in order of seniority. Judith Albright