After a hearing, the judge, in a memorandum and order dated June 11, 1986, extended On May 20, 1986, the plaintiff moved for an extension of the six-month period on the ground that she was unable to obtain a visa to enter the United States. Based upon an affidavit attesting that Gos had recently been discharged from the hospital, the judge allowed the plaintiff's motion with the proviso that the case was "to be dismissed if plaintiff is not deposed within six (6) months." The plaintiff filed an objection to this order on December 18, 1985. After a hearing in the Superior Court the judge took no action on the motion, but allowed Gos two months in which to provide affidavits concerning her health and claim of indigency.Ī second hearing on the plaintiff's motion for a protective order was held before another judge on December 5, 1985. Gos moved, on September 24, 1985, for a protective order on the grounds that she was without funds to travel from Poland, and was then under psychiatric care in a mental institution. Brownstein noticed the plaintiff's deposition. Among the various theories of recovery are counts alleging negligence and breach of contract. Brownstein and Valley alleging, inter alia, that she became pregnant in August, 1980, underwent an abortion on October 21, 1980, and thereby suffered physical, emotional, and economic damages. On November 3, 1982, Gos filed suit against Dr. Gos returned to Poland on November 19, 1979, where she has since resided. The surgery was performed by the defendant doctor, then an employee of defendant Valley Obstetrical & Gynecological Associates (Valley). The plaintiff, Irena Gos, is a resident of Poland who, on November 6, 1979, while visiting her sister in Springfield, Massachusetts, underwent a laparoscopic tubal ligation. We vacate that part of the order which dismissed the action and remand the case for further proceedings. We transferred the case here on our own motion.
261, Section 27C (1), for payment of transportation expenses of the defendants' counsel to be incurred in taking the plaintiff's deposition in Poland. The plaintiff appeals from the dismissal of her medical malpractice action for failure to attend a deposition,Īnd from the denial of her application pursuant to G. Melinda Phelps, for Frederic Brownstein, was present but did not argue. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.įelicity Hardee for Valley Obstetrical & Gynecological Associates. Plaintiff's failure to attend was a product of wilfulness, bad faith, orĬIVIL ACTION commenced in the Superior Court Department on November 3, 1982. The dismissal was predicated on a finding by the judge that the
That part of an order which dismissed the action and remanded the caseįor further proceedings, where it did not appear on the record whether If a plaintiff is unable to comply with an order for discovery, vacated
Noting that due process requirements may limit the sanction of dismissal 37 (b), of aĬivil action for plaintiff's failure to attend a deposition, this court, On appeal from the dismissal, pursuant to Mass. Properly removed from the docket for the reason that Section 27DĮxpressly provides that the decision of the single justice is final. Relating to the taking of a deposition, along with related filings, was Judge's denial of motions seeking the court's payment of expenses 261, Section 27D, affirming a Superior Court Present: HENNESSEY, C.J., WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.Ī notice of an appeal from an order of a single justice of the AppealsĬourt pursuant to G.
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