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Nett v. Bellucci

Issue certified to Massachusetts Supreme Court: for purposes of statute of repose, does plaintiff "commence" action against newly-added defendant by filing motion for leave to amend complaint or by filing amended complaint itself?

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge]

This appeal arises from a medical malpractice lawsuit alleging negligent prenatal care and injuries sustained by Aaron Nett during his delivery on April 2, 1992. The Netts filed suit against the obstetrician, Mitchell Bellucci, M.D., on April 30, 1996. When the Netts discovered that the problems during delivery stemmed, at least in part, from the erroneous reading of an ultrasound by radiologist Peter Gross, M.D., they filed a motion for leave to amend their complaint to include him as a defendant on March 10, 1999. The Netts filed their amended complaint on April 26, 1999. In between these two filings, the time during which the Netts could commence an action against Dr. Gross under Massachusetts’ seven-year statutes of repose expired, and the district court dismissed their claim against Dr. Gross on that basis. Because it is unclear, under Massachusetts law, whether the filing of a motion for leave to amend constitutes the commencement of the action for the purpose of the statutes of repose, or, as the district court held, the amended complaint itself must be filed within the statutory period, we certify, on our own motion, this question and a related question to the Supreme Judicial Court of Massachusetts (SJC).

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