UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 11-10204-GAO
ROBERT ZEMAN and J ULIA ZEMAN,
Plaintiffs,
v.
ZIV WILLIAMS, M.D., EMAD ESKANDAR, M.D., HINA ALAM, SARY F. ARANKI, M.D.,
RHONDA BENTLEY-LEWIS, M.D., SUSAN BURNSIDE, RICHARD D’AUGUSTA,
ASHWIN DHARMADHIKARI, M.D., DEBORAH ECKER, MELISSA FRUMIN, M.D.,
ROBERT J . GLYNN, ELIZABETH L. HOHMANN, M.D., DAVID A. J ONES, M.D.,
THOMAS KOLOKOTRONES, KEITH A. MARCOTTE, FRANCISCO MARTY, M.D.,
ELINOR A. MODY, M.D., J OAN RILEY, ANDREW P. SELWYN, ARTHUR C. WALTMAN,
M.D., SJ IRK WESTRA, M.D., SEAN R. WILSON, M.D., and NEUROLOGIX, INC.,
Defendants.


ORDER
J uly 7, 2014

O’TOOLE, D.J .
The plaintiffs have moved to amend their Amended Complaint (dkt. no. 4) to add claims
against a new party, Michael Kaplitt, M.D., and, as a result, a new count against Neurologix,
Inc., for vicarious liability. The new complaint would also add some allegations to the existing
counts.
The proposed allegations as to Dr. Kaplitt include the following: Dr. Kaplitt, a licensed
physician in New York, acted as a representative and agent of Neurologix. Neurologix made
representations to the Recombinant DNA Advisory Committee (“RAC”), a federal advisory
committee that oversees gene transfer experiments, that Dr. Kaplitt would provide training to
each participating surgeon as to surgical techniques and would be present at each site’s first
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surgery.
1
 The plaintiffs wish to bring negligence and loss of consortium claims against Dr.
Kaplitt. The negligence claim asserts Dr. Kaplitt’s negligent training of Dr.
Williams, the neurosurgeon; negligent supervision of Dr. Williams during the
surgery; and abandonment of Mr. Zeman midway through the surgery.
Mr. Zeman believed that Dr. Kaplitt had been involved with devising the study, had
trained Dr. Williams, and would be present at the surgery to oversee Dr. Williams.
 To prevail on a claim for negligence, “a plaintiff must first establish that the
defendant owed a legal duty of care” to the plaintiff. Remy v. MacDonald, 801
N.E.2d 260, 262-63 (Mass. 2004) (citations omitted). Whether a duty exists is a
matter of law, “to be determined by reference to existing social values and
customs and appropriate social policy.” Wallace v. Wilson, 575 N.E.2d 1134,
1136 (Mass. 1991) (citations omitted).
The key question is whether Dr. Kaplitt owed a duty to Mr. Zeman the breach of which
would give rise to a cause of action. The plaintiffs’ theory is based on the proposition that Dr.
Kaplitt voluntarily undertook a duty to Mr. Zeman by undertaking to train the neurosurgeon in
the clinical trial, Dr. Williams, and thus stood in a “special relationship” with Mr. Zeman under
the doctrine of cases such as Mullins v. Pine Manor College, 449 N.E.2d 331, 336 (Mass. 1983)
(“It is an established principle that a duty voluntarily assumed must be performed with due
care.”). In Mullins, the Supreme J udicial Court found that a college had a duty to use care to
protect the safety of its students.
It should be noted that the proposed claim against Dr. Kaplitt is not a claim of medical
malpractice, nor could it be. The proposed amended complaint does not assert facts to support

1
Mr. Zeman’s surgery was the first at Massachusetts General Hospital.
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the existence of a doctor-patient relationship. The claim is rather predicated on Dr. Kaplitt’s
acting on behalf of the sponsor of the clinical trial.
Under Massachusetts law, a “special relationship” sufficient to impose a duty of care may
arise under a variety of factual circumstances. See Irwin v. Town of Ware, 467 N.E.2d 1292,
1300-1301 (Mass. 1984). A person’s statutory responsibilities may give rise to a “special
relationship.” Id. at 1302. The plaintiffs have alleged that a special relationship arose between
Dr. Kaplitt and the first human subject of the clinical trial because of Dr. Kaplitt’s obligations
under the regulatory scheme applicable to such trials. Ultimately, whether such a relationship is
supported in this case will be judged on the basis of the evidence at trial, but for now, the claim
is plausible under Massachusetts law and pled with adequate detail.
The proposed vicarious liability claim against Neurologix may also proceed.
For these reasons, the plaintiffs’ Motion to Amend (dkt. no. 27) is GRANTED, subject,
however, to the ruling, separately announced, that the claims against the IRB members are to be
DISMISSED. Accordingly, the plaintiffs shall prepare a form of complaint that reflects that
ruling. Any appeal rights regarding the dismissal of the claims against IRB members are saved.
It is SO ORDERED.
/s/ George A. O’Toole, J r.
United States District J udge

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