JOHN HUGO v. NUVASIVE, 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

22-P-422

JOHN HUGO

vs.

NUVASIVE, INC. & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court judge entered separate and final judgment,

dismissing defendants David Campbell and Melissa Stone from this

medical malpractice action. The plaintiff, who did not appeal

the judgment, now appeals the denial of his motion for

reconsideration of the judgment. Because the judge did not

abuse his discretion in denying the motion, we affirm.

Background. The plaintiff commenced the underlying medical

malpractice action on May 10, 2018. On November 19, 2021, a

medical tribunal, pursuant to G. L. c. 231, § 60B, reported,

relative to these two defendants, that there was not sufficient

evidence to raise a legitimate question as to liability

1 Medtronic PLC; Medtronic Sofamor Danek USA, Inc.; Pfizer, Inc.
as successor to Wyeth, Inc.; Beth Israel Deaconess Medical
Center, Inc.; Paul Glazer; Paul Glazer M.D., P.C.; David
Campbell; Melissa Stone; and Does 1-9.
appropriate for judicial inquiry.2 The plaintiff was thus

required to either post a bond with the court within thirty days

or seek reduction of the bond requirement in order to proceed

with the action against these defendants. See G. L. c. 231,

§ 60B. On December 20, 2021, the plaintiff filed an "Emergency

Motion for Expansion of Time for Rule 9A Motion for Reduction of

Bond." Although this motion was allowed, granting the plaintiff

until January 24, 2022, to file his motion, he failed to timely

post the bond or file (1) a motion to reduce the bond, or (2) a

motion to further expand the time to post the bond.

Accordingly, on January 27, 2022, a Superior Court judge ordered

the plaintiff's claims against these defendants dismissed due to

the plaintiff's failure to post the bond.3 Separate and final

judgment entered on February 9, 2022.

On February 23, 2022, the plaintiff filed his "Emergency

Motion for Reconsideration and Request for a Hearing," asking

for a second extension of time to file for a reduction in the

bond. On February 24, 2022, the judge denied the motion,

concluding, "A hearing is denied because the issues are clear.

2 The medical tribunal reported sufficient evidence appropriate
for judicial inquiry as related to other individuals named in
the amended complaint.

3 General Laws c. 231, § 60B, provides in pertinent part: "If
said bond is not posted within thirty days of the tribunal's
finding the action shall be dismissed."

2
This motion is denied because the court finds that this process

of delay will go on forever and the defendants must not be

subjected to this."

Discussion. 1. Scope of review. As a preliminary matter,

we note that our review is limited to the judge's denial of the

plaintiff's motion for reconsideration. We need not consider

the plaintiff's challenge to the judgment because the judgment

is not identified in the notice of appeal as required by Mass.

R. A. P. 3 (c) (1), as appearing in 481 Mass. 1603 (2019), and

because the plaintiff failed to timely appeal the judgment

within the thirty-day period specified in Mass. R. A. P. Rule

4 (a), as appearing in 481 Mass. 1606 (2019). See Muir v. Hall,

37 Mass. App. Ct. 38, 40 (1994). Moreover, the plaintiff's

motion to reconsider did not toll the time to file an appeal

since it was not served within ten days of the judgment, as

required by Mass. R. A. P. 4 (a) (2) (C). See Piedra v. Mercy

Hosp., Inc., 39 Mass. App. Ct. 184, 186-187 (1995). Since Mass.

R. Civ. P. 59 (e), 365 Mass. 827 (1974), also required service

within ten days, we treat the plaintiff's motion as one for

relief from the judgment pursuant to Mass. R. Civ. P. 60 (b),

365 Mass. 828 (1974), which does not bring with it an appeal

3
from the original judgment. See Piedra, supra at 187-188;

Wilkinson v. Guarino, 19 Mass. App. Ct. 1021, 1023 n.6 (1985).4

2. Rule 60 motion. "Rule 60 sets forth a comprehensive

framework for obtaining relief from a final judgment or order,

balancing the competing needs for finality and flexibility to be

certain that justice is done in light of all the facts." Sahin

v. Sahin, 435 Mass. 396, 399-400 (2001). Here, the plaintiff's

motion alleged that his incapacitation due to illness, from

approximately December 1, 2021, through February 8, 2022,

rendered him unable to fulfill his obligations -- to include the

filing of a motion to further expand the time for posting bond -

- as a pro se litigant. His claim falls under rule 60 (b) (6),

a catchall provision that provides an avenue of relief for "any

other reason" not accounted for in rule 60 (b) (1) through (5).

A judge considering a rule 60 (b) (6) motion may consider

whether the moving party "has a meritorious claim or defense

. . . whether extraordinary circumstances warrant relief . . .

and 'whether the substantial rights of the parties in the matter

in controversy' will be affected by granting the motion"

(citation omitted). Owens v. Mukendi, 448 Mass. 66, 72 (2006).

4 The plaintiff's pro se status does not excuse his procedural
failures. "A pro se litigant is bound by the same rules of
procedure as litigants with counsel." Kellermann v. Kellermann,
390 Mass. 1007, 1008 (1984), quoting International Fid. Ins. Co.
v. Wilson, 387 Mass. 841, 847 (1983).

4
Rule 60 (b) (6) has an "extremely meagre scope" and "requires

compelling or extraordinary circumstances" (citations omitted).

Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 188 (1990).

The motion is therefore addressed to the discretion of the judge

and "will not be reversed on appeal save for abuse" (citation

omitted). Parrell v. Keenan, 389 Mass. 809, 814-815 (1983).

See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (judge

abuses discretion where "decision falls outside the range of

reasonable alternatives" [citation omitted]).

The plaintiff first asserts that the judge erred by not

finding his medical incapacitation warranted relief from the

judgment. In considering the plaintiff's motion, the judge was

not required to credit the plaintiff's assertions (unsupported

by either affidavit5 or medical documentation) as to either the

nature of the purported incapacitation or that the stated

conditions prevented him from timely compliance with a court

order. See, e.g., Hermanson v. Szafarowicz, 457 Mass. 39, 47

(2010) (judge evaluating rule 60 [b] motion not bound to accept

defendant's self-serving statements). In fact, the Superior

5 The plaintiff's motion for reconsideration does not include an
attestation of oath as to its averments, but only as to its
service to the defendants. Under Rule 9A (a) (4) of the Rules
of the Superior Court (2018), "The court need not consider any
motion, opposition, or reply based on facts unless the facts are
verified by affidavit, are otherwise apparent in the record, or
are agreed to in a writing signed by the interested parties or
their counsel."

5
Court docket reveals that the judge had concerns with prior

plaintiff filings. For instance, in allowing defendant Stone's

"Motion to Strike Plaintiff's Request for Admissions," the judge

ordered, "The defendants are not obligated to respond to

scandalous requests that are made without basis."6

Additionally, the record permitted the judge to conclude

that the plaintiff's underlying action lacked merit. A

meritorious claim is one that is "worthy of judicial

investigation because [it raises] a material question of law

meriting discussion and decision, or a real controversy as to

essential facts arising from conflicting or doubtful evidence."

Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433

(1979), quoting Russell v. Foley, 278 Mass. 145, 148 (1932).

Here, the plaintiff did not support his motion with either an

affidavit or reference to materials in discovery that indicated

he could maintain a case on the merits. See Berube, supra at

430. This omission is glaring considering the tribunal's

conclusion that the plaintiff did not offer sufficient evidence

6 We do not mean to suggest the judge would have abused his
discretion had he credited the plaintiff's claims before
concluding the proffered basis did not amount to extraordinary
circumstances justifying relief from the judgment under rule
60 (b) (6). See Winthrop Corp., 29 Mass. App. Ct. at 188. See
also DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 621-622 (2016)
("Extraordinary circumstances may include evidence of actual
fraud, a genuine lack of consent, or a newly-emergent material
issue").

6
to raise a legitimate question as to liability, which triggered

the statutory requirement that he post bond in order to proceed.

Furthermore, the judge's extensive involvement7 with this matter

indicates his familiarity with the merits of this case and

informed his discretionary authority to deny the motion. See,

e.g., Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343,

362 (2008) (deferential standard of review particularly

appropriate where judge "intimately familiar" with matter and

parties).

Similarly, the judge's familiarity with this case permitted

him to reject as unreasonable the plaintiff's request in his

motion for additional time to file for reduction in the bond.

In fact, the judge had previously expressed concern for the

plaintiff's delay, as evidenced by an October 2020 docket entry,

noting that "[t]he court does not anticipate further

enlargements [for the plaintiff] in the face of an objection."

Instead of actually filing a motion for reduced bond, the

plaintiff sought further delay. The plaintiff's pattern of

delay supports the judge's ultimate conclusion that "this

process of delay will go on forever and the defendants must not

be subjected to this."

7 The docket reflects that the judge had been involved with
issues related to discovery and the medical malpractice tribunal
process, and that he had presided over the defendants' motions
to dismiss.

7
The plaintiff also claims he did not receive

contemporaneous notice of the judge's allowing him additional

time to file a motion to waive the appeal bond, and that this

lack of notice somehow entitles him to even more additional

time. Among other problems with this argument,8 the plaintiff

never raised this argument with the Superior Court, and it

therefore is waived. See M. H. Gordon & Son, Inc. v. Alcoholic

Beverages Control Comm'n, 386 Mass. 64, 67 (1982) ("The general

8 This lack of notice claim provides no basis for relief, as it
does not explain the plaintiff's failure to file a motion to
waive the bond either by the first or by the extended deadline.
The plaintiff never filed a motion concerning the bond, instead
he repeatedly sought more time to in which do so. As discussed
supra, the judge acted within his discretion in concluding that
this evidenced the plaintiff's pattern of delay. In addition,
the factual basis for the plaintiff's claim runs contrary to the
parties' submissions, which reveal that the Superior Court
Clerk's Office and defense counsel successfully communicated
with the plaintiff, via the same, plaintiff-provided email
address (for court notifications), during the time frame in
which the court sent the relevant notice.

8
rule is that an issue not raised in the trial court cannot be

argued for the first time on appeal").

Order denying motion for
reconsideration affirmed.

By the Court (Milkey, Henry &
Smyth, JJ.9),

Clerk

Entered: March 8, 2023.

9 The panelists are listed in order of seniority.

9