Washington v. Gagliani (Lawyers Weekly No. 10-077-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 […]