SAMUEL SMITH v. MCKESSON MEDICAL-SURGICAL INC. & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its 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 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-815

SAMUEL SMITH

vs.

MCKESSON MEDICAL-SURGICAL INC. & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Samuel Smith, an inmate at the Old Colony Correctional

Center (OCCC), appeals from a Superior Court judgment dismissing

his complaint against McKesson Medical-Surgical Inc. (McKesson)

and four members of OCCC's medical staff (OCCC defendants) for

failure to state a claim on which relief could be granted. A

Superior Court judge (motion judge) ruled that Smith's claims

against McKesson were time barred and that his claims against

the OCCC defendants were barred by the doctrine of claim

preclusion. We affirm.

1John Straus, Emily Holmes, Jessica Labelle, and Nadi
Bernard.
Background. In December 2018, before filing this Superior

Court action, Smith filed a complaint in the United States

District Court (Federal complaint) against the same defendants

as are involved here, and also against a "John Doe" bandage

manufacturing company located in China. The Federal complaint,

as later amended, alleged that in September 2018, Smith had

sought medical treatment from the OCCC defendants for a small

leg wound. The complaint further alleged that the OCCC

defendants had treated him using adhesive bandages manufactured

by the John Doe company on McKesson's behalf, as well as with an

antibiotic, but that the wound became irritated and badly

infected. Smith attributed this at least in part to the

bandages.

The Federal complaint asserted seven numbered claims:

(1) the defendants were negligent in manufacturing, marketing,

and distributing the bandages; (2) the defendants committed a

breach of the implied warranty of merchantability; (3) the

defendants failed to warn of the side effects of using their

bandages; (4) McKesson violated G. L. c. 93A; (5) the John Doe

company violated G. L. c. 93A; (6) McKesson failed to properly

label its product; and (7) the John Doe company failed to

properly label the chemical ingredients it used to make the

product.

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On the OCCC defendants' and McKesson's motions to dismiss,

a Federal judge, giving Smith's pro se complaint the benefit of

a liberal construction, interpreted it as attempting to allege

that the medical treatment he received violated the Eighth

Amendment to the United States Constitution, which prohibits

cruel and unusual punishments. The judge determined, however,

that the complaint failed to state such a claim, because it did

not plausibly allege that the OCCC defendants were deliberately

indifferent to his medical need. Indeed, the complaint itself

identified a number of affirmative measures that the OCCC

defendants had taken to treat his leg wound.

The Federal judge further concluded that the attempted

Eighth Amendment claim was the only possible basis for Federal

subject matter jurisdiction. There was no Federal question

jurisdiction, because the complaint's additional claims all

arose under State law; and there was no diversity jurisdiction,

because Smith and the OCCC defendants were all Massachusetts

residents. The judge stated, "Given the dismissal of Smith's

only [F]ederal law claim at this early juncture, the [c]ourt

declines to exercise supplemental jurisdiction over his

remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3)."

The judge therefore allowed the OCCC defendants' motion,

dismissed the remaining claims for lack of subject matter

jurisdiction, and ruled that McKesson's motion to dismiss was

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moot. Smith appealed, and on November 2, 2021, the United

States Court of Appeals for the First Circuit affirmed the

judgment.

Shortly thereafter, on January 20, 2022, Smith filed his

Superior Court complaint against McKesson and the OCCC

defendants (but not the John Doe company). 2 The complaint's

factual allegations were similar to those of the Federal

complaint. The complaint again asserted seven numbered claims,

but this time the final two claims were expressly directed to

the OCCC defendants. The seven claims were (1) the defendants

were negligent in manufacturing, marketing, and distributing the

bandages and in failing to adequately warn Smith of the dangers

associated with the chemical ingredients; (2) the defendants

committed a breach of the implied warranty of merchantability;

(3) the defendants failed to warn of the side effects of using

their bandages; (4) McKesson violated G. L. c. 93A; (5) McKesson

failed to properly label its product; (6) "[t]he inadequate

protection at the hands of" the OCCC defendants and "the care

they provided fell far below the contempora[r]y standards of

decency"; and (7) the OCCC defendants violated Smith's rights

2 At oral argument, Smith asserted that the complaint was
filed in December 2021. The record shows that the complaint was
dated December 21, 2021, but was not docketed until January 20,
2022. As between those two dates, the precise time of filing is
not material to our analysis.

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under the Eighth Amendment and under art. 26 of the

Massachusetts Declaration of Rights, which prohibits cruel and

unusual punishments.

On the defendants' motions to dismiss, the motion judge

ruled, as noted above, that Smith's claims against McKesson were

time-barred and that his claims against the OCCC defendants were

barred by the doctrine of claim preclusion. This appeal

followed.

Discussion. 1. Claims against McKesson. McKesson's

motion to dismiss asserted that Smith's claims against it

accrued no later than December 6, 2018, when he filed his

Federal complaint. Because he did not file his Superior Court

complaint until January 2022, McKesson asserted that that

complaint was untimely under G. L. c. 260, § 2A, which

establishes a three-year limitations period for personal injury

claims. The motion judge agreed.

On appeal, Smith argues based on Jinks v. Richland County,

538 U.S. 456 (2003), that the limitations period was tolled

while his Federal case was pending, making his Superior Court

complaint timely. In Jinks, the Court upheld against a

constitutional challenge to a Federal statute providing, as

relevant here, that when a Federal complaint asserts a State law

claim over which a Federal district court could exercise

supplemental jurisdiction, "[t]he period of limitations for any

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[such] claim . . . shall be tolled while the claim is pending

and for a period of [thirty] days after it is dismissed unless

State law provides for a longer tolling period." Jinks, supra

at 459, quoting 28 U.S.C. § 1367(d). That provision "suspends

the statute of limitations for two adjacent time periods: while

the claim is pending in [F]ederal court and for [thirty] days

postdismissal . . . . That is, the limitations clock stops the

day the claim is filed in [F]ederal court and, [thirty] days

postdismissal, restarts from the point at which it had stopped."

Artis v. District of Columbia, 583 U.S. 71, 83–84 (2018).

The problem with Smith's argument here is that he failed to

raise it in the Superior Court. The argument is therefore

waived. See Albert v. Municipal Court of Boston, 388 Mass. 491,

493-494 (1983) (party is not entitled to review of issue not

presented in trial court). The most Smith asserted in the

Superior Court was that "time was tolled upon filing

requirements of []G. L. c. 93A and the litigation in Federal

[c]ourts"; he cited nothing to support this proposition or

otherwise to alert the motion judge that some federal statute

might have tolled the limitations period. We conclude that

Smith "did not sufficiently raise the issue below and is

therefore barred from raising it on appeal." Boss v. Leverett,

484 Mass. 553, 562 (2020). See Commonwealth v. Bly, 444 Mass.

640, 650-651 (2005) (explaining importance of waiver doctrine).

6
Smith also argues that a statute of limitations defense

cannot properly be resolved on a motion to dismiss, as occurred

here, but instead must await the summary judgment phase of a

case. But the case he cites for this proposition, Jones v.

Bock, 549 U.S. 199 (2007), states the contrary. "If the

allegations [of a complaint] show that relief is barred by the

applicable statute of limitations, the complaint is subject to

dismissal for failure to state a claim." Id. at 215. Here, the

allegations of Smith's complaint showed that by October 2018,

more than three years before he filed the complaint, he knew he

had suffered harm and he believed McKesson's bandages to be

partly responsible. 3 Smith has therefore shown no cognizable

error in the motion judge's dismissal of his claims against

McKesson. 4

3 That Smith alleged he was hospitalized for a flareup of
his infection in August 2020, does not mean the statute did not
start to run until then. "The plaintiff need not know the full
extent of the injury before the statute starts to run." Bowen
v. Eli Lilly & Co., 408 Mass. 204, 207 (1990).

4 In his opposition to McKesson's motion to dismiss, Smith
asserted that the limitations period applicable to those claims
was four years, rather than three. Smith has not renewed this
argument on appeal, and therefore we do not consider it. We
"need not pass upon questions or issues not argued in the
brief." Mass. R. A. P. 16 (a) (9) (A), as appearing in 481
Mass. 1628 (2019). See Tedeschi-Freij v. Percy Law Group, P.C.,
99 Mass. App. Ct. 772, 781 (2021).

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2. Claims against OCCC medical staff. The OCCC

defendants' motion to dismiss asserted that Smith's claims

against them were barred by claim preclusion (a form of res

judicata), because the claims either were or could have been

asserted in the Federal case. The motion judge agreed. In

reviewing that decision, we apply Federal law. "When a State

court is faced with the issue of determining the preclusive

effect of a Federal court's judgment, it is the Federal law of

res judicata which must be examined." Anderson v. Phoenix Inv.

Counsel of Boston, Inc., 387 Mass. 444, 449 (1982).

a. Eighth Amendment claim. The motion judge's dismissal

of the Eighth Amendment claim was plainly correct. The Federal

judge had dismissed that claim for failure to state a claim, and

the First Circuit had affirmed that judgment, yet Smith

reasserted the claim in his Superior Court complaint based on

essentially the same facts. Under Federal law, as in

Massachusetts, "a dismissal for failure to state a claim, under

[Rule] 12(b)(6), operates as a dismissal on the merits . . .

with res judicata effect." Isaac v. Schwartz, 706 F.2d 15, 17

(1st Cir. 1983). And "a final judgment on the merits of an

action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action"

(citation omitted). Massachusetts Sch. of Law at Andover, Inc.

v. American Bar Ass'n, 142 F.3d 26, 38 (1st Cir. 1998). The

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motion judge's dismissal of the Eighth Amendment claim was

therefore warranted. Indeed, Smith's appellate brief appears to

concede that "the argument to dismiss the [F]ederal civil rights

portion of his [S]tate [complaint] is proper."

b. Art. 26 claim. The motion judge's dismissal of the

art. 26 claim was likewise proper. 5 That claim grew out of the

same nucleus of operative facts as the Eighth Amendment claim,

and it could have been asserted in the Federal case, just as was

the Eighth Amendment claim. Once the Federal case was dismissed

on the merits, Federal claim preclusion doctrine barred Smith

from raising the art. 26 claim in Superior Court. 6 See

Massachusetts Sch. of Law at Andover, Inc., 142 F.3d at 38.

We acknowledge that, as to those State law claims that

Smith actually asserted in the Federal case, the Federal judge

dismissed the claims not on the merits but because he declined

5 We treat Smith's Superior Court claim that the OCCC
defendants provided care falling "far below the contempora[r]y
standards of decency," as essentially duplicating his art. 26
claim for cruel and unusual punishment and therefore as
requiring no separate discussion. Smith acknowledged at oral
argument that his "contempora[r]y standards of decency" claim
was a cruel and unusual punishment claim. See, e.g.,
Commonwealth v. Mattis, 493 Mass. 216, 221, 224 (2024)
(resolving art. 26 claim based in part on contemporary standards
of decency).

6 "Whether a Federal court judgment precludes a State [law]-
based action in the Commonwealth is a question governed by
Federal common law." Alves v. Massachusetts State Police, 90
Mass. App. Ct. 822, 824 (2017).

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exercise supplemental (or pendent) jurisdiction over them. The

dismissal of those claims has no preclusive effect that is

relevant here; Smith tried to assert them in timely fashion but,

for reasons beyond his control having nothing to do with the

merits of the claims, was unable to obtain a final decision on

them.

But the rule is different for State law claims, like the

art. 26 claim, which Smith could have asserted in the Federal

case but did not. "Simply stated, if a set of facts gives rise

to a claim based on both State and Federal law, and the

plaintiff brings the action in a Federal court which had

'pendent' jurisdiction to hear the State claim but the plaintiff

declines to assert such State claim, he may not subsequently

assert the State ground in a State court action" (emphasis

added). Anderson, 387 Mass. at 450. Under this rule, the art.

26 claim in State court was barred.

Although there is an exception to this rule in situations

where the Federal court "clearly would have declined to

exercise" supplemental jurisdiction over the State law claim "as

a matter of discretion" had the claim been asserted, Anderson,

387 Mass. at 450, that exception does not apply here. To be

sure, the Federal judge did decline to exercise supplemental

jurisdiction over the State law claims (essentially, product

liability claims) that were expressly asserted. But it is far

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from clear that he would have done so with the art. 26 claim,

had it been asserted in the Federal case. The art. 26 claim was

closely related to the Eighth Amendment claim on which the

Federal judge did rule. It was based on the same facts and was

governed by a similar if not identical legal standard. Compare

Torres v. Commissioner of Correction, 427 Mass. 611, 615-616,

cert. denied, 525 U.S. 1017 (1998) (stating art. 26 standard),

with Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014), cert.

denied sub nom., Kosilek v. O'Brien, 575 U.S. 998 (2015)

(stating Eighth Amendment standard). Had Smith chosen to assert

the art. 26 claim in Federal court, the Federal judge could well

have exercised his discretion to address it on the merits just

as he did the Eighth Amendment claim. Smith's decision to

reserve his art. 26 claim for assertion in State court was

therefore a form of claim splitting. It burdened the court

system as a whole with essentially duplicative claims -- a

result that claim preclusion doctrine is designed to avoid.

c. Other claims. On appeal, Smith argues that his

Superior Court complaint also asserted claims against the OCCC

defendants for "medical negligence, the failure to notify [him]

of adverse side effects, and to effectively treat [him] [in a

manner] that medical standards dictate." Smith argues that

these claims should not have been dismissed.

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We do not see these claims anywhere in the complaint. As

we recounted above, that complaint asserted seven claims, only

two of which expressly named the OCCC medical staff as

defendants. The remaining five claims either were expressly

asserted only against McKesson; 7 or were asserted more generally

against the defendants, but were based on facts that applied

only to McKesson. 8 Nowhere did any of the seven claims refer to

medical negligence or the like. Similarly, Smith's memorandum

in opposition to the OCCC defendants' motion to dismiss did not

refer to any of the medical negligence claims he now argues were

asserted in his complaint. Instead, that opposition focused on

what Smith termed his "claims of deliberate indifference," i.e.,

his art. 26 and Eighth Amendment claims.

In sum, Smith's Superior Court complaint enumerated seven

specific claims, yet he did not list, or otherwise give fair

notice of, any claims for medical negligence or the like. And

7 These were the claims for McKesson's violation of G. L.
c. 93A and for McKesson's failure to properly label its product.

8 These were the claims for negligent manufacture,
marketing, and distribution of the bandages and failure to
adequately warn Smith of the dangers associated with their
chemical ingredients; breach of the implied warranty of
merchantability; and failure to state any of the side effects of
their "adhesive band-aids use." The factual allegations of the
complaint do not plausibly allege that the OCCC medical staff
did any of these things. In particular, Smith never alleged
that the OCCC defendants knew, yet failed to warn him, of any
adverse side effects of using McKesson bandages.

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when the OCCC defendants moved to dismiss, Smith's opposition

still failed to identify such claims. We recognize both that

there is no requirement for a complaint to state the correct

legal theory of the case and that pro se filings are to be

interpreted liberally. See Haas v. Commissioner of Correction,

103 Mass. App. Ct. 1, 6 (2023). Still, every litigant has a

responsibility to clearly state what that litigant is asserting

-- to give the trial court judge reasonable notice of the

litigant's claims and arguments -- so that they may be fairly

addressed and correctly resolved before any appeal is taken.

Smith failed to do so here. See Albert, 388 Mass. at 493-494.

The motion judge did not err in dismissing the complaint without

addressing whatever medical negligence claims might have been

lurking somewhere in the complaint, or in Smith's plans for the

litigation, but which he never clearly identified.

Judgment affirmed.

By the Court (Blake, Neyman &
Sacks, JJ. 9),

Clerk

Entered: September 18, 2024.

9 The panelists are listed in order of seniority.

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