Atchue v. Benchmark Senior Living LLC

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19-P-125 Appeals Court

KENNETH F. ATCHUE, personal representative,1 vs. BENCHMARK
SENIOR LIVING LLC, & another.2

No. 19-P-125.

Worcester. November 5, 2019. - October 5, 2020.

Present: Rubin, Wolohojian, & Henry, JJ.

Assisted Living Residence. Practice, Civil, Discovery,
Amendment of complaint, Moot case, Motion to dismiss,
Statute of limitations, Survival of action. Evidence,
Production on demand. Due Process of Law, Statute of
limitations. Limitations, Statute of. Survival of Action.

Civil action commenced in the Superior Court Department on
June 1, 2018.

A motion to dismiss was heard by Francis E. Flannery, J.

1 Of the estate of Mary T. Atchue. After this case was
fully briefed and shortly after argument, Atchue died. The
defendants filed a motion to dismiss the appeal based on the
plaintiff's death. Subsequently, we allowed the motion to
substitute the personal representative of the plaintiff's
estate. See Mass. R. A. P. 30 (a), as appearing in 481 Mass.
1661 (2019). We refer to the original plaintiff, Mary T.
Atchue, throughout this opinion.

2 B-X Worcester, LLC, doing business as Tatnuck Park at
Worcester.
2

Thomas B. Farrey, III, for the plaintiff.
Joseph M. Desmond for the defendants.

HENRY, J. Mary T. Atchue brought a complaint for discovery

-- a seldom used equitable remedy -- to ascertain how she

sustained a broken foot and contusions, possibly while being

transferred by aides at an assisted living facility owned and

operated by the defendants. She appeals from a judgment

dismissing her complaint without explanation. The defendants

contend that the matter is now moot, either because the statute

of limitations on Atchue's potential negligence claim has

expired and a complaint for negligence would be time barred or

because Atchue has died. We conclude that the matter is not

moot. Accepting as true, as we must, Atchue's allegation in her

complaint that she believed that she had a claim for negligence

but required the requested documents to assess the viability of

that claim, we conclude that it was error to dismiss her

complaint in these narrow circumstances: she demonstrated an

actual injury while in the care of others, she seeks to discover

records of her own care, and she asserts that she needs such
3

records to assess the viability of her potential claim.3

Accordingly, we vacate the judgment of dismissal.

Factual background. We accept the factual allegations of

the complaint as true, as well as any reasonable favorable

inferences drawn from them. See Security Coop. Bank v. McMahon,

294 Mass. 399, 403-404 (1936) (taking allegations in bill in

equity as true). See also Zizza v. Zizza, 456 Mass. 401, 402

n.3 (2010); Chang v. Winklevoss, 95 Mass. App. Ct. 202, 204

(2019).

On December 19, 2015, while in her unit of an assisted

living facility known as Tatnuck Park at Worcester, Atchue fell

while being transferred by aides and was injured, sustaining a

broken foot and contusions. Her family repeatedly requested

that the defendants provide copies of all reports concerning the

accident. An employee of the defendants has acknowledged the

existence of records concerning the accident. The defendants

agree that they have not produced these reports.

Prior to filing her complaint for discovery, Atchue's

counsel sent the defendants a G. L. c. 93A demand letter, which

is attached to the complaint, alleging that she fell while

"aides were transferring [her] without using a gait belt, in

3 To the extent a person is forced to litigate to get such
records, they should not be compelled to assert a cause of
action seeking damages, too.
4

contravention of [the defendants'] own care plan." This was not

the end of the exchange between the parties, however. The

defendants responded by disputing any liability and particularly

disputing (1) that Atchue fell (defendants say her legs gave out

and aides assisted her to the ground), (2) that Atchue's care

plan required aides to use a gait belt when transferring her,

and (3) that Atchue broke her foot during this incident when

aides assisted her to the ground.

The records are in the exclusive possession of the

defendants, and Atchue is the subject of the records. She

alleged that she "believes that she has a viable claim for

negligence against [the defendants] and/or their agents,

servants or employees," but that she "requires the information

contained in the incident report and other requested documents

in order to assess the viability of her claim." Atchue was

elderly at the time of the incident, and it is unclear whether

she may have had cognitive impairments that prevented her from

understanding or conveying to others what, exactly, happened.

Based on the fact that this was an assisted living facility, as

well as statements that family members were acting on her behalf

by requesting the records and handling her billing, it also is

reasonable to infer that Atchue may not have been able to

identify the specific aides or negligent acts that caused her

injuries.
5

Atchue's complaint for discovery seeking the production of

documents was docketed on June 1, 2018, and it was dismissed on

November 8, 2018. Atchue filed her notice of appeal on December

3, 2018.

Discussion. 1. Bills for discovery. Historically, a bill

for discovery came within the "ancillary jurisdiction of the

equity court" and could be maintained "to aid the plaintiff in a

suit which he intend[ed] immediately to bring, as well as in a

suit already brought, if the bill disclose[d] a cause of action"

(citation omitted). Wolfe v. Massachusetts Port Auth., 366

Mass. 417, 419 (1974). The bill for discovery could be brought

to help a party determine the correct party to sue, see, e.g.,

id. at 422; to obtain evidence in support of an action already

brought, see, e.g., MacPherson v. Boston Edison Co., 336 Mass.

94, 103 (1957); or to obtain evidence in support of an action

not yet brought, see, e.g., Backlund v. General Motors Corp.,

352 Mass. 776, 776 (1967).4 Since the enactment of simpler,

statutory procedures for obtaining discovery, "[t]here are few

instances in which [bills for discovery] continue[] to have any

practical significance." MacPherson, supra at 100. However,

4 The practice of using a bill for discovery to obtain
evidence in support of an action not yet brought has been
established in other States. See, e.g., Berger v. Cuomo, 230
Conn. 1, 5-11 (1994); Shorey v. Lincoln Pulp & Paper Co., 511
A.2d 1076, 1077-1078 (Me. 1986).
6

the Supreme Judicial Court has made clear that statutory

remedies have not supplanted the bill for discovery and that the

bill instead supplements those remedies. See, e.g., Wolfe,

supra at 419 n.1 ("[t]he rules [of civil procedure] do not

eliminate the 'independent action against a person not a party

for production of documents and things and permission to enter

upon land'" [citation omitted]).5 Thus, when a bill seeks

discovery alone, discovery is available "where the statutory

procedure[s] [are] inadequate to obtain the necessary

information, and . . . where the information sought could have

been obtained under a pre-1851 bill for discovery." MacPherson,

supra. In deciding whether to grant such discovery, a judge

should bear in mind the "'limited purpose' for which [a bill for

discovery] provides a 'practical and reasonable' discovery

procedure and that the relief granted is within these

parameters." Wolfe, supra at 422, quoting MacPherson, supra at

105.

2. Mootness. We first address the defendants' argument

that this matter is now moot either because of the statute of

limitations such that a complaint for negligence would be time

Wolfe was decided after the Massachusetts Rules of Civil
5

Procedure became effective on July 1, 1974, but the new rules
were not applicable to the case. See Wolfe, 366 Mass. at 419
n.1.
7

barred or because Atchue has died. As a general rule, courts do

not decide moot cases. Branch v. Commonwealth Employment

Relations Bd., 481 Mass. 810, 816 (2019), cert. denied sub nom.

Branch v. Massachusetts Dep't of Labor Relations, 140 S. Ct. 858

(2020). "[L]itigation is considered moot when the party who

claimed to be aggrieved ceases to have a personal stake in its

outcome" and where a court thus cannot order any further

effective relief. Id. at 816-817, quoting Bronstein v. Board of

Registration in Optometry, 403 Mass. 621, 627 (1988).

a. Statute of limitations. The defendants argue that the

statute of limitations for negligence claims expired on the

three-year anniversary of Atchue's fall, while this appeal was

pending. See G. L. c. 260, § 2A. The defendants further

contend that if Atchue can no longer bring a negligence claim,

her complaint for discovery is moot because she no longer has a

personal stake in obtaining the requested documents. Atchue

does not dispute that the statute of limitations for negligence

claims is three years and instead argues that if she is

permitted, on remand, to amend her complaint for discovery to

add a negligence claim, that negligence claim would relate back

to when she filed her complaint for discovery. We agree.

When a new claim asserted in an amended pleading arises

"out of the conduct, transaction, or occurrence set forth or

attempted to be set forth in the original pleading, the
8

amendment . . . relates back to the original pleading." Mass.

R. Civ. P. 15 (c), 365 Mass. 761 (1974). Atchue's complaint

alleged that she fell while being transferred by aides at her

assisted living facility. To the extent that Atchue seeks to

amend her complaint to add a claim for negligence arising out of

that very fall, we have no trouble concluding that such a claim

would arise out of the occurrence set forth in the original

pleading. See Cimino v. Milford Keg, Inc., 385 Mass. 323, 333

(1982) (new emotional distress claim arose out of same car

accident that gave rise to original wrongful death claim).

Contrast Weber v. Community Teamwork, Inc., 434 Mass. 761, 784-

785 (2001) (new retaliation claim, for employer's refusal to

provide reference letter after plaintiff filed complaint with

Massachusetts Commission Against Discrimination, did not relate

back to plaintiff's original claims, which arose out of her

termination).6

6 While the defendants do not raise the argument, we note
that there is no basis for us to conclude that, as a matter of
law, a complaint for discovery cannot be amended to add a
substantive claim. See Etienne v. Oyake, 347 F. Supp. 2d 215,
220-222 (D.V.I. 2004) (treating discovery action as complaint,
amendment allowed as of right). See also Surface v. Town of Bay
Harbor Islands, 625 So. 2d 109 (Fla. Dist. Ct. App. 1993)
(labeling complaint as bill of discovery not bar to amendment
adding statutory cause of action). Nor is there any basis for
us to conclude that a complaint seeking equitable relief cannot
be amended to include a claim at law. See Senior Hous. Props.
Trust v. HealthSouth Corp., 447 Mass. 259, 268 n.24 (2006) ("If
a complaint seeking only equitable relief is later amended to
9

Through the relation back doctrine, Atchue offers a

feasible means by which her potential negligence claim is not

barred by the statute of limitations. Remand is appropriate in

these circumstances. Cf. Gonzalez v. Commissioner of

Correction, 407 Mass. 448, 453 (1990) (where class action

improperly certified because issue had become moot as to named

plaintiffs, "better course" was to remand to see if someone else

would seek to be admitted as class representative); Dwyer v.

Globe Newspaper Co., 367 Mass. 910, 911 (1975) (due to

developments in law occurring after case was on appeal, justice

"best served" by remanding with instructions that plaintiff

could file motion to amend). Any prejudice to the defendants is

for the judge to weigh on remand. See Cimino, 385 Mass. at 333.7

seek money damages, a jury demand as to the legal issue may then
be made").

7 We recognize that Atchue also may be able to argue that
the statute of limitations was equitably tolled, although we
acknowledge that the doctrine is sparingly used. See Shafnacker
v. Raymond James & Assocs., 425 Mass. 724, 728 (1997) (equitable
tolling sparingly used doctrine generally limited to instances
of excusable ignorance, defective pleading, or misconduct by
defendant [quotations and citations omitted]). Compare
Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 446
(1996) ("a statute of limitations may be tolled . . . by reason
of the employer having caused the employee to delay acting,
i.e., an equitable estoppel"); Cherella v. Phoenix Techs. Ltd.,
32 Mass. App. Ct. 919, 920 (1992) (where defendant "encourages
or cajoles the potential plaintiff into inaction, that conduct
may be a basis of extending the limitations period as matter of
equity"). We do not reach this issue.
10

b. Survival of complaint after death. Nor is this matter

moot as a result of Atchue's death. At common law, contract

actions survived the death of a party, while tort actions did

not. Kraft Power Corp. v. Merrill, 464 Mass. 145, 150 (2013).

The Legislature has since enacted the survival statute, G. L.

c. 228, § 1, to expand the common-law rule. See Kraft Power,

supra. Pursuant to that statute, and as relevant here, actions

of tort "for assault, battery, imprisonment or other damage to

the person" now survive death. G. L. c. 228, § 1 (2) (a).

There is no doubt that Atchue's potential negligence claim for

her foot injury would fall within the survival statute as a tort

for damage to the person. The defendants argue, however, that

her complaint for discovery is neither a contract action that

survives death under common law nor one of the enumerated tort

actions that survive death under G. L. c. 228, § 1. We

disagree. See Harrison v. Loyal Protective Life Ins. Co., 379

Mass. 212, 215 (1979) ("[I]t is plain from the structure and

language of the statute that the Legislature did not intend to

give an exhaustive list of torts which would survive and thereby

to imply that those not so listed must abate upon death as they

had at common law. On the contrary, the Legislature intended to

abrogate the common[-]law nonsurvival rule by virtue of a

flexibly drawn statute which gives a partial listing of torts

that should survive followed by the broad phrase 'or other
11

damage to the person.' This phrase clearly leaves room to

accommodate other torts which the court might deem to involve

damage to the person. Thus the statute is sufficiently dynamic

to allow for a change in judicial conceptions of what types of

harm constitute legally redressable 'damage to the person'").

Accord Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165,

179 (2013).

Moreover, the defendants' argument overlooks the fact that

a complaint for discovery is an equitable remedy in aid of an

action at law. We discern no reason why, where the

administrator of an estate has the ability to pursue an action

at law on behalf of a decedent, the administrator of the estate

would not have the same ability as the decedent to obtain

prelawsuit discovery through a complaint for discovery. See

generally Reynolds v. Burgess Sulphite Fibre Co., 71 N.H. 332

(1902). We thus conclude that whether a complaint for discovery

survives death turns on whether the underlying action at law

survives death. See, e.g., Moore v. Backus, 78 F.2d 571, 576-

577 (7th Cir.), cert. denied, 296 U.S. 640 (1935) (where

plaintiff's underlying claim survived his death, so too did his

bill for discovery). Because Atchue's potential negligence

claim survives her death, so too does her complaint for

discovery.
12

3. Motion to dismiss. Having concluded that this matter

is not moot, we turn to the merits of the defendants' motion to

dismiss. Prior to receiving the complaint for discovery and in

response to requests made by Atchue by letter, the defendants

produced 870 pages of documents, but the defendants did not

produce the key documents that were always the focus of Atchue's

requests, the incident reports for the incident in question.

The sole basis asserted in the defendants' motion to dismiss was

that Atchue's complaint for discovery did not comply with Mass.

R. Civ. P. 27 (a), as amended, 423 Mass. 1401 (1996), which

concerns prelawsuit depositions. This argument fails for the

simple reason that Atchue was not seeking a deposition pursuant

to rule 27. She was instead seeking the production of

documents, and only documents, pursuant to a complaint for

discovery, an alternative common-law equitable remedy that was

not supplanted by the Massachusetts Rules of Civil Procedure.

See Wolfe, 366 Mass. at 419 ("rather than supplanting the bill

of discovery, statutory remedies are supplemented by it").

The proper inquiry is whether the rules of civil procedure

were "inadequate to obtain the necessary information," and

whether Atchue's complaint for discovery complied with

applicable common-law requirements. MacPherson, 336 Mass. at

100. In addressing this question, we note that the judge did

not hold a hearing on the merits of Atchue's document requests
13

and that, according to the docket, the motion appears to have

been decided under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974).8 We do not address whether, after a hearing on the

merits of the document requests, it would have been an abuse of

discretion for the judge to deny the requests, as that issue is

not before us. See Shorey v. Lincoln Pulp & Paper Co., 511 A.2d

1076, 1078 (Me. 1986) (in case involving bill for discovery,

usual rule of reviewing for abuse of discretion did not apply

where "presiding justice failed to exercise any discretion

because he erroneously concluded that he lacked the power to

grant the relief sought by the plaintiff").

It is undisputed that Atchue had an injury -- a broken foot

and contusions. Taking her allegations as true and drawing all

reasonable inferences in her favor, however, she did not know

whether she had a viable claim for negligence and she did not

know who was aiding her when she fell. Thus, as is true in

other cases involving bills for discovery, the plaintiff alleged

a specific and definite injury and requested discovery to

determine whether the defendants' negligence caused that injury

and whom she might sue. See, e.g., MacPherson, 336 Mass. at 95

8 The docket describes the motion as a "12 (b) motion to
dismiss." The only subsection of rule 12 (b) that applies to
the defendants' arguments is rule 12 (b) (6) for failure to
state a claim. As noted above, the motion judge did not explain
why he allowed the motion to dismiss.
14

(plaintiff, who came into contact with high voltage wire owned

by defendant, brought bill for discovery to inspect wires). The

defendants counter that this equitable remedy was not available

to Atchue because she did know the factual basis for her

potential negligence claim and that she thus could have filed

that claim and then sought discovery pursuant to the

Massachusetts Rules of Civil Procedure.9 The defendants point to

the fact that Atchue, prior to filing her complaint for

discovery, sent the defendants a G. L. c. 93A demand letter.

This was not the end of the exchange between the parties,

however. The defendants responded by disputing all liability.

The defendants' argument thus ignores the fact that, having

completely denied any liability, they were attempting to

dissuade Atchue's counsel from filing an action, asserting that

there was no good ground to support Atchue's claim. Atchue

alleged that she needed certain documents about her own care to

assess the viability of a negligence claim, that the requested

documents were in the exclusive possession of the defendants,

9 The approach suggested by the defendants could run afoul
of Mass. R. Civ. P. 11 (a), as amended, 456 Mass. 1401 (2010)
("The signature of an attorney to a pleading constitutes a
certificate by him . . . that to the best of his knowledge,
information, and belief there is a good ground to support it.
. . . For a wilful violation of this rule an attorney may be
subjected to appropriate disciplinary action").
15

and that she had no other means of obtaining them. Accepting

these allegations as true, as we must, it is reasonable to infer

that Atchue needed the requested documents -- specific documents

about the precise incident at issue -- to see if they supported

the defendants' version of events.10 See, e.g., Backlund, 352

Mass. at 776 (viewing petition to examine allegedly defective

piece of machinery as bill for discovery in aid of possible

action at law against manufacturer, no abuse of discretion in

granting requested relief). These are the precise set of

circumstances in which a complaint for discovery is an available

means of relief. See Wolfe, 366 Mass. at 419. This was not a

fishing expedition between commercial competitors. Atchue

suffered a concrete injury, possibly through negligence, and

asserted that she needed the records to assess the viability of

that potential claim. The complaint for discovery complied with

common-law requirements, and there was no adequate remedy under

the rules of civil procedure for requesting such documents.

The defendants also contend that Atchue's complaint for

discovery does not meet the requirement of "address[ing] a

10In reaching this conclusion, we are particularly mindful
that we do not know the extent to which Atchue was able to
describe what happened and how it happened. We also note that
the defendants do not argue the availability of other prelawsuit
procedures by which Atchue could have tried to obtain the
documents.
16

'limited purpose' for which it provides a 'practical and

reasonable' discovery procedure."11 Wolfe, 366 Mass. at 422,

quoting MacPherson, 336 Mass. at 105. We are mindful that a

complaint for discovery should not be used to obtain discovery

to fish for a potential claim, and we assume without deciding

that this equitable remedy should be used sparingly and only

when there is a known injury. Here, as noted above, Atchue did

suffer an injury and sought only specific documents about the

precise incident in question to see if they supported what she

believed to have occurred -- that she fell while being

transferred by aides.12 Regardless, the scope of Atchue's

11The defendants raise this argument in the context of
suggesting that we could affirm on the alternative basis of
undue burden, but the defendants have not provided -- either
here or below -- any information regarding the scope of
responsive documents or how burdensome it would be for them to
produce those documents. This argument may be raised at a
hearing on the merits of Atchue's document requests. See Wolfe,
366 Mass. at 422 ("At a hearing on the merits of the bill [for
discovery, the defendant] may object to discovery of
confidential or excessively numerous documents. The trial
judge, in his discretion, may then dismiss the bill or order
discovery in whole or in part").

12As we have noted, the plaintiff, an elderly woman living
in an assisted living facility, allegedly fell while being
transferred by aides and sought reports related to that precise
incident. Whether it was in that fall or otherwise, she
demonstrated unexplained injuries -- a broken foot and
contusions. This was not a fishing expedition that lacked a
factual or legal basis. See, e.g., Pitts v. Wingate at
Brighton, Inc., 82 Mass. App. Ct. 285, 289-292 (2012) (jury
reasonably could have concluded, without aid of expert
17

document requests goes to the merits of her complaint for

discovery. See Wolfe, supra. Atchue's complaint for discovery,

however, never reached that stage. The judge never held a

hearing on the merits of the document requests and instead

dismissed Atchue's complaint for the production of documents.

This was error.

The defendants raise two other arguments. First, relying

on more recent cases in which bills for discovery were brought

against third parties, the defendants argue that Atchue's

complaint for discovery fails because it was brought against the

very entities likely to be named as defendants in Atchue's

proposed litigation. But, historically, bills for discovery

were typically brought against parties to the proposed

litigation. See MacPherson, 336 Mass. at 103-104. It was the

exception that bills for discovery were permitted against third

parties. See id. at 104.

Second, the defendants argue that the requested documents

are privileged work product. There is no basis in the record

for us to affirm on this ground. The defendants never produced

a privilege log or any other pertinent information that would

have allowed the judge below, or this court on appeal, to assess

testimony, that plaintiff's injuries were caused by fall while
being transferred by nursing home aides).
18

the merits of the defendants' objections to Atchue's document

requests. See Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs.,

Inc., 449 Mass. 609, 619 (2007) (party asserting work product

has burden to show privilege applies).13

Conclusion. The judgment is vacated, and the matter is

remanded for further proceedings consistent with this opinion.

So ordered.

13As with the defendants' argument regarding undue burden,
the work product argument may be raised in a hearing on the
merits of the document requests. See note 11, supra.