Response to Motion to Dismiss Medical Malpractice Claim









Plaintiff, David Meggett, by his undersigned counsel, asks that this Court deny Defendant Bertram Zarins, M.D. Motion to Dismiss.In support, Plaintiff states as follows:


Dr. Zarins’ motion is a close facsimile to a motion already denied by this Court filed last year by the New England Patriots (“Patriots”) (who settled with Plaintiff sometime after the Court’s ruling). Dr. Zarins’ motion fails for the same reasons the Patriots’ motion failed, as set forth below.

Additionally, Dr. Zarins motion also fails because he is not an employee of New England Patriots and cannot seek refuge in the arbitration provisions of the NFL Collective Bargaining Agreement.

Dr. Zarins’ motion is deliberately obtuse with respect to defining his relationship to the team, arguing that because he is the “Team Physician” any claim against him is governed by the CBA. But he is not an employee of the team entitled to the protection of the CBA.

Dr. Zarins is the Chief of the Massachusetts General Hospital Sports Medicine Service as well as a Professor at Harvard Medical School, not an employee of the Patriots’ organization.Dr. Zarins cites Sherwin v. Indianapolis Colts, 752 F. Supp. 1172 (N.Y.D.C 1990), as persuasive authority to the instant case.

In Sherwin, the court was faced with the question of whether physicians that were team employees were subject to the arbitration provisions of the NFL Collective Bargaining Agreement. In finding for the defendant, the court distinguished those cases where the physicians were independent contractors. Id. at 1181.

The Sherwin court made this necessary distinction because there are no provisions in the CBA that subject independent contractors to the arbitration provisions of the CBA. Dr. Zarins points to the fact that the team is required to compensate the medical doctors that provide care for football related injuries.

However, Dr. Zarins cannot argue he is a Patriots’ employee subject to the CBA simply because he was compensated by the Patriots for his services to Mr. Meggett and other football players on the team. Moreover, Plaintiff’s claim does not depend in any way on his status as a member of the NFL Players Association. The identical claim could be asserted by anyone Dr. Zarins treated.

There is no language in the CBA that governs claims against independent contractors hired by the Patriots and no support in any language in the CBA that even suggests that independent contractors who provide medical care are “third party beneficiaries” under the CBA.

Dr. Zarins Has Waived Arbitration

Even assuming, arguendo, that Dr. Zarins had a right to arbitrate, he gave up that right by failing to assert it for almost four years, while actively participating in the discovery process. The right to arbitration "may be lost, as any contractual right which exists in favor of a party may be lost through a failure properly and timely to assert the right." Home Gas Corp. of Massachusetts, Inc. v. Walter's of Hadley, Inc., 403 Mass. 772, 775 (1989).

The essential question is whether, under the totality of the circumstances, the defaulting party acted inconsistently with the arbitration right. Martin v. Norwood, 395 Mass. 159, 162, 478 N.E.2d 955 (1985). A party has waived his or her right to arbitration if: (1) the party has actually participated in the lawsuit or has taken other action inconsistent with his right, (2) the litigation machinery has been substantially invoked and the parties are well into preparation of a lawsuit, or (3) there has been a long delay in seeking the stay or (4) the party raised enforcement of the arbitration right when trial was near at hand. Id.

A party is also deemed to have waived arbitration where that party has taken advantage of judicial discovery procedures not available in arbitration. Home Gas Corp., 403 Mass. at 775-76, quoting Reid Burton Constr. Inc. v. Carpenters Dist. Council, 614 F.2d 698, 702 (10th Cir.), cert. denied, 449 U.S. 824, 66 L. Ed. 2d 27, 101 S. Ct. 85 (1980).

In this case, it is clear that Dr. Zarins has waived any right to arbitration. Dr. Zarins did not “proceed with dispatch” in seeking arbitration, waiting almost four years to file this motion. In fact, Dr. Zarins stood idly by as the Patriots filed an identical motion, appearing at the hearing on the Patriots’ motion without taking a position. Dr. Zarins has substantially invoked the “litigation machinery."

By actively participating in the case since November 2000, conducting written discovery and taking numerous depositions, discovery mechanisms that would not have been available in arbitration. Dr. Zarins is now seeking to enforce an alleged arbitration right after a discovery period that has spanned almost four years. Because Dr. Zarins has acted completely inconsistent with that right, he has, under Massachusetts law, waived any right to arbitrate.

A Federal Court Ruled the NFL CBA Is Not Applicable to this Malpractice Case

In November 2002, the Patriots sought to remove this action to federal court, asserting that the CBA covered Plaintiff’s claims against these Defendants and therefore the federal court must assert jurisdiction to determine the applicability of the CBA. The District Court rejected Defendant’s assertion, ruling that Plaintiff’s claim of vicarious liability against the Patriots for Dr. Bertram Zarins’ medical malpractice and the malpractice claim against Ronald O’Neil do not arise out of and are otherwise not related to the CBA. The Court’s ruling was clear and unambiguous, noting that the Defendants’ request for removal failed because their claim did not require interpretation of the collective bargaining agreement. See Order on Motion for Reconsideration, attached as Exhibit 1. Naturally, this means that the grievance arbitration provisions of the CBA are not implicated, yet this is the basis upon which Dr. Zarins offers his arbitration argument.

Under the doctrine of law of the case, where, as here,a court has decided upon a rule of law, that decision governs the same issues in subsequent stages in the same case. DiLaura v. Power Auth., 982 F.2d 73, 76 (2d Cir. 1992); Peterson v. Hopson, 306 Mass 597, 599 (1940). Efficient disposition of the case demands that each stage of the litigation build upon the last, and not afford litigants an opportunity to reargue every previous ruling. Conservation Comm'n of Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 742 (2000) 306 Mass. 597, 599(1940).

The doctrine has even greater force when a case is transferred from one judge to another. "A judge should hesitate to undo his own work. Still more should he hesitate to undo the work of another judge." Peterson v. Hopson, 306 Mass. 597, 603 (1940). This principle should especially apply when a federal court judge has ruled on a question of federal law.

Yet almost four years after the District Court's ruling, Dr. Zarins asks this court to explicitly overrule Judge Lindsay's ruling and find that the CBA is implicated in this medical malpractice case.

Dr. Zarins argues that this dispute is governed by mandatory arbitration. Dr. Zarins manufactured this argument on the foundation of the CBA. Dr. Zarins' untimely argument is essentially a syllogism: Because certain terms of the CBA purportedly govern this dispute, and because the CBA includes an arbitration process for certain disputes, this dispute is necessarily subject to arbitration.

The syllogism fails because the first assumption is patently false, as Judge Lindsay found four years ago. Dr. Zarins offers no reason in the law or in logic why this Court should buy into the faulty syllogism, and more to the point, no reason whatsoever why this Court should take the extraordinary step of overruling Judge Lindsay's findings. There is, of course, every reason not to do so. This is what the doctrine of law of the case is all about.

Dr. Zarins Does Not Have a Right to Arbitration

Even if the Court were presented with the issue in the first instance, which it is not, there is no reason it should decide differently from the federal court. Dr. Zarins argues that this malpractice action implicates the CBA.

Nowhere does the CBA address the medical malpractice of the Patriots’ team physician who is an independent contractor. Dr. Zarins relies on a CBA section entitled “Players Rights to Medical Care and Protection,” stating the player’s team is obligated to advise him of any detected “physical condition which adversely affect the player’s performance or health.” But an obligation under this provision exists only if the club physician “advises a coach or other Club representative of the player’s physical condition.” An obligation to notify a player of a detected injury if notification is also given to a team representative is light years from the medical malpractice allegations in this case and the language lends no support to Dr. Zarins’ argument that he is a third party beneficiary to the collective bargaining agreement.

Dr. Zarins cites Sherwin v. Indianapolis Colts, 752 F. Supp. 1172 (N.Y.D.C 1990), as controlling authority in this case. But the facts of this case are expressly distinguishable by the court in Sherwin. The Plaintiffs in Sherwin cite two arbitration decisions involving NFL players for the proposition that tort claims by NFL players are not properly the subject to the CBA, citing language in one that “the misdiagnosis or malpractice by a team physician ‘is not properly addressed in the forum of this Collective Bargaining Agreement.’” Id. at 1179. The court distinguished these cases because, unlike Sherwin, they did not involve independent claims against the team for their own negligence butinvolved claims against independent contractors.

WHEREFORE, Plaintiff respectfully requests that this Court deny Defendant Bertram Zarins’, M.D., Motion to Dismiss.

Respectfully submitted,

Ronald V. Miller, Jr.
1 South St, #2450
Baltimore, MD 21202
(410)760-8922 (fax)

Paul Denver
Rossman, Rossman & Eschelbacher

Marketplace Center, 3 North
200 State Street
Boston, MA 02109

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