Gorbey ex rel. Maddox v. American Journal of Obstetrics & Gynecology
849 F. Supp. 2d 162
D. Mass.2012Background
- Plaintiffs Gorbey and Stapleton, minors, sue under Massachusetts Chapter 93A against Elsevier, Salamon, Lerner, Bond Clinic, and American Journal of Obstetrics & Gynecology.
- The Lerner-Salamon article (March 2008) in AJOG is challenged as fraudulent and misleading about a birth with brachial plexus injury.
- Plaintiffs allege the article was inaccurate and contradicted hospital records and deposition testimony relating to the subject birth.
- Both plaintiffs suffered permanent brachial plexus injuries at births involving shoulder dystocia; they previously pursued malpractice actions and lost at trial.
- Plaintiffs contend the article was used by defense in those trials to defeat liability and seek damages and a prohibition on future use.
- The court granted motions to dismiss the 93A claim and denied the motion to amend to add a fraud count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation under 93A | Gorbey/Stapleton argue the article caused harm by depriving verdicts of damages. | Defendants contend no causal link between the article and plaintiffs' injuries or verdicts. | Causation not shown; 93A claim dismissed. |
| Materiality and plausibility of causation | Allege the article was material to juries' verdicts and harmed plaintiffs. | Allegations merely show article was introduced, not material to any verdict. | Allegations fail to plausibly show materiality; dismissal affirmed. |
| Amendment for fraud | Proposal to add fraud claim would aid recovery if reliance by third parties occurred. | No Massachusetts law supports third-party reliance for fraud; still futile. | Amendment denied as futile. |
| Personal jurisdiction (Salamon/Bond Clinic) | Court should retain claims against Salamon/Bond Clinic notwithstanding jurisdiction. | Salamon/Bond Clinic lack of personal jurisdiction defeats claims against them. | Personal jurisdiction defenses succeed; claims against Salamon/Bond Clinic dismissed. |
Key Cases Cited
- Tyler v. Michaels Stores, Inc., 840 F.Supp.2d 438 (D. Mass. 2012) (causation required for 93A claims)
- Aspinall v. Philip Morris Co., Inc., 442 Mass. 381 (Mass. 2004) (causation elements for Chapter 93A)
- Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486 (Mass. 2012) (plaintiff must show causation between deception and loss)
- Smith v. Jenkins, 818 F.Supp.2d 336 (D. Mass. 2011) (requirement that deception cause appreciable loss)
- Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500 (Mass. 2011) (causal connection between deception and loss required)
- Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114 (1st Cir. 2009) (amendment futility standard for failed state claims)
- Nollet v. Justices of the Trial Court of Mass., 83 F.Supp.2d 204 (D. Mass. 2000) (reiterates evidentiary scope on motions to dismiss)