Articles Posted in Personal Injury

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Most medications have side effects, but some medications can cause more harm than good. If you sustained injuries or illness caused by adverse effects of medication, you may be entitled to recover damages. To recover on a claim against a pharmaceutical manufacturer, under Massachusetts personal injury law you must present expert evidence regarding the cause of your injuries. In Jackson v. Johnson, the United States District Court for the District of Massachusetts dismissed Plaintiff’s claims against a pharmaceutical manufacturer, due to Plaintiff’s failure to produce sufficient expert evidence in support of his claims. If you suffered injuries due to side effects caused by medication, it is essential to retain an experienced personal injury attorney to ensure the evidence necessary to support your claim is obtained.

Facts of the Case

In Jackson, Plaintiff alleged he was prescribed anti-psychotic medication, which caused him to become obese and develop diabetes and gynecomastia. Plaintiff sued defendant pharmaceutical manufacturer, setting forth claims arising out of negligence (negligence, negligent failure to warn, negligent misrepresentation and negligent infliction of emotional distress), breach of warranty (breach of warranty and breach of express warranty), products liability (strict products liability and strict products liability failure to warn), fraudulent concealment, and unfair and deceptive practices. After Plaintiff filed his lawsuit he sought and received several extensions of the deadlines for completing discovery and for filing disclosures of the experts who he would call on to support his claims. Plaintiff eventually provided disclosures for three of his treating physicians, whom he identified as experts. Defendant subsequently filed a Motion for Summary Judgment, asking the court to dismiss Plaintiff’s claims. Plaintiff argued that the Motion was premature, as discovery had not yet been completed. The court granted Defendant’s Motion.

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Under Massachusetts law, every medical malpractice lawsuit must undergo an initial review by a tribunal to determine if the plaintiff has a possibility of recovering. The tribunal consists of a judge, a physician, and an attorney. If upon review the tribunal determines the plaintiff has insufficient evidence to raise a question of liability, the plaintiff must then file a $6,000.00 bond secured by cash or its equivalent to proceed with his or her case. While in some cases the bond can be reduced, the requirement that plaintiffs file a bond cannot be eliminated. If the bond is not filed, the plaintiff’s case will be dismissed. An inadequate bond is grounds for dismissal as well, as the Supreme Court of Massachusetts recently decided in Polanco v. Sandor. If you believe you were injured due to medical malpractice in Massachusetts, it is essential to retain an experienced Massachusetts medical malpractice attorney to pursue your claim, and to ensure you do not waive any rights to recovery.

In Polanco, the plaintiff filed a medical malpractice lawsuit against three treatment providers. Following a review of the case, the medical malpractice tribunal determined the plaintiff’s evidence was insufficient to raise a question of fact regarding liability. Subsequently, to fulfill the bond requirement, the plaintiff filed a surety bond in the amount of $6,000.00, which he obtained for $120.00. The defendants then filed a motion to strike the surety bond and dismiss the Complaint, arguing the surety bond did not meet the statutory bond requirements. Defendants’ motion was granted. The judge then reported his ruling to the Court of Appeals. The case was subsequently transferred to the Supreme Court of Massachusetts under its own initiative.

The court noted that the $6,000.00 bond a plaintiff must pay if the tribunal finds there is insufficient evidence the defendant acted negligently is payable to the defendant in the event the plaintiff does not ultimately prevail in his or her action. The tribunal review and the bond requirement were instituted to reduce frivolous lawsuits against medical providers. Upon review of plaintiff’s surety bond, the court found that it failed to fulfill the bond requirement. The court stated that allowing the plaintiff to pursue his case after only paying $120.00, rather than the $6,000.00 required by law, would defeat the objective of the statutory requirement. Moreover, the court noted the plaintiff failed to set forth any argument in support of his position that the surety bond was adequate.

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People are often asked to sign waivers before engaging in activities that may be perceived as dangerous. Under Massachusetts personal injury law, signing such a waiver generally precludes the person who signed the waiver from pursuing a negligence claim against the released party. In Cahalane v. Skydive Cape Cod, however, the Appeals Court of the Commonwealth of Massachusetts held that it would not prevent the injured party from recovering for any gross negligence in contravention of the terms of the agreement.

In Cahalane, Plaintiff engaged Defendant’s services to go on a tandem skydive jump. Prior to embarking on her jump, Plaintiff signed a waiver in which she released any claims against Defendant for negligence or gross negligence. Plaintiff was permitted to purchase a release from the waiver, but chose not to do so. During the jump, Plaintiff was attached to an instructor. As they approached the ground the instructor performed a hook turn. Hook turns are disapproved of in skydiving safety bulletins, as they are a leading cause of death and injury in skydiving. Due to the manner in which the pair landed, both of Plaintiff’s femurs were fractured on impact. Plaintiff sued Defendant, alleging negligence and gross negligence. Defendant filed a Motion for Summary Judgment, arguing that the waiver barred Plaintiff’s claims. The trial court granted Defendant’s Motion and Plaintiff appealed, arguing the waiver was induced by fraud and was unenforceable. On appeal, the court held that the waiver was enforceable and precluded Plaintiff’s negligence claim but ruled that it did not bar Plaintiff’s gross negligence claim.

The court noted that Plaintiff was given ample opportunity to review the waiver and did not produce evidence that anyone made any false representations to her regarding the waiver. As such, the court held it was enforceable. The court noted, however, that while Massachusetts law favors the enforcement of releases for liability for negligent acts, a party cannot immunize itself from liability for grossly negligent or reckless acts. The court explained that gross negligence is more than a failure to exercise ordinary care and was better explained as great negligence, or conduct without any diligence or care. The court noted each case must be analyzed on its facts to determine if the defendant’s actions were grossly negligent, but additionally noted that a moment of inattentiveness in a dangerous situation could constitute gross negligence. As such, the court held that the question of whether Defendant was grossly negligent and therefore liable to Plaintiff could not be decided via summary judgment but must be submitted to a jury.

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People routinely entrust their health to medical providers with the expectation they will be provided with appropriate care. Unfortunately, at times, the medical treatment provided falls short of what is expected and actually results in harm to the patient. If treating providers fail to adhere to the standard of care imposed on them, they should be liable for any damages caused. The attorneys who defend doctors and hospitals in medical malpractice cases are often aggressive and will engage in several tactics to try to diminish any damages caused by their clients. The Massachusetts Court of Appeals recently held in Larkin v. Dedham Medical Associates, Inc., however, that a plaintiff’s future medical damages in a medical malpractice case are not entirely reliant on their past medical expenses. If you are pursuing a medical malpractice case in Massachusetts, it is important to have an aggressive Massachusetts medical malpractice attorney advocating on your behalf to enable you to recover the maximum damages possible.In Larkin, the plaintiff-wife was diagnosed by her primary care physician with a venous varix on the left side of her brain and an aneurysm on the right side of her brain. She underwent initial diagnostic testing at the direction of her physician, but he failed to order any follow-up testing. Additionally, when she became pregnant, he failed to report her brain abnormalities to her obstetrician. Due to the physical stress of giving birth to her child, the plaintiff-wife’s venous varix experienced an increase in intracranial pressure, and a clot formed. The plaintiff-wife subsequently suffered a stroke, which required extensive surgery and resulted in the permanent loss of her ability to walk or care for herself. She requires constant care, day and night, for the rest of her life.

The plaintiff-wife, along with her husband and child, sued her primary care physician and his practice group, seeking damages for pain and suffering, lost wages, past medical expenses, and future medical expenses. The plaintiff-husband also sought damages for loss of consortium. Following a jury trial, the plaintiffs were awarded $35.4 million, which included an award of $11 million for future medical expenses. The defendants filed multiple post-trial motions, arguing, among other things, that the plaintiffs’ counsel misrepresented the cost of the plaintiff-wife’s past medical bills, resulting in inflated future medical damages. The court denied the majority of the post-trial motions, and the defendants appealed. On appeal, the Massachusetts Court of Appeals affirmed.

Regarding the plaintiff-wife’s medical expenses, it was undisputed that the plaintiffs’ attorney misrepresented the plaintiff-wife’s past medical expenses as $4 million, when they were in fact $1,272,013.70. Following the trial, the judge rectified this error by reducing the verdict award for past medical expenses to reflect the actual amount. The defendants argued, however, that since the plaintiffs introduced limited evidence regarding future medical costs, the jury relied on the inflated amount of past medical expenses in awarding damages for the cost of future care, leading to an improper amount. The court disagreed with the defendants and sustained the future damages award. First, the court noted that an expert opinion is not required to prove future medical damages. The court also found the jury could have reasonably awarded $11 million in damages for future medical costs without relying on the misrepresentation, and it found that the trial court did not err in reducing the award only for past medical bills.

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Bullying is a persistent and ever growing problem throughout the schools in our nation, including schools in Massachusetts. While generally bullying is thought of as causing emotional harm, it often results in physical harm as well. Parents may be unsure who should be held accountable when their child suffers a personal injury due to bullying. Recently, the Massachusetts Supreme Judicial Court held that public defendants in Massachusetts personal injury cases are protected from liability for negligently failing to prevent the bullying and physical assault of a child.

In Cormier v. City of Lynn, a classmate pushed the child victim down a flight of stairs. The fall caused a spinal injury that ultimately resulted in the victim’s permanent paralysis. The victim’s parents brought a lawsuit against several defendants, including the City of Lynn, the school district and their public employees. The victim’s parents alleged that the victim had been subjected to constant bullying over the school year, and that his mother had reported harassing acts to the school officials on several occasions. The victim had reported acts of bullying and harassment to his teachers and school administrators as well. The victim’s parents alleged the school negligently failed to enforce its own anti-bullying policies and procedures.

The City of Lynn, school district and public employees filed a motion to dismiss arguing the claims against them were barred by the Massachusetts Torts Claim Act. The motion to dismiss was granted and affirmed on appeal. The Massachusetts Supreme Judicial Court granted the victim’s parents’ motion for further review on whether the Massachusetts Torts Claims Act barred them from bringing claims against the public defendants for negligently failing to prevent the victim from being bullied.

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Under the Massachusetts Workers’ Compensation Act (the Act) an individual who suffers a workplace injury is entitled to benefits. While obtaining benefits due to a covered injury is generally a relatively straightforward process, it can become complicated if your employer is unable to provide benefits. Generally, employers maintain insurance policies that provide coverage for workers’ compensation claims, but if your employer is self-insured and becomes insolvent it may not initially be clear who is responsible for your benefits. Recently, the Appeals Court of Massachusetts addressed the issue of who bears the responsibility of paying benefits when an employer becomes insolvent, and ultimately held that under Massachusetts Workers Compensation law a reinsurer is required to pay workers’ compensation benefits if a self-insured employer’s surety bond is exhausted.

In Janocha, the facts were undisputed. The employee suffered a workplace injury, which resulted in a permanent and total incapacitation for work. At the time of the employee’s injury the employer was self-insured, and held both a surety bond with a bond holder and a reinsurance policy with a reinsurer, pursuant to the terms of the Act. The reinsurance policy contained a retention provision, which stated the reinsurer would provide indemnification for covered losses once the benefits paid for a covered loss reached $400,000. The employer paid the employee’s benefits directly from the time of the employee’s injury until the employer’s bankruptcy in 2007, after which the bond holder issued payments directly to the employee. In 2012, the bond was exhausted and no further payments were made to the employee; however, the $400,000 retention limit had not been reached.

The employee filed a claim against the reinsurer, seeking reinstatement of his benefits. Following a hearing, an administrative judge held that once the employer’s bond was exhausted the employer was uninsured under the terms of the act and, therefore, the workers’ compensation trust fund was responsible for providing the employee’s workers’ compensation benefits until the payments reached $400,000. The trust fund appealed. On appea,l the workers’ compensation board reversed the administrative judge’s ruling, finding that the provisions of the Act stated the trust would only be the responsible party when the employer was uninsured on the date of the injury. As such, the board found the reinsurer to be responsible for paying benefits directly to the employee. The board further ruled that the reinsurer must act as a guarantee of a self-insured employer’s ability to pay benefits, and found the retention limit was void, as it conflicted with the reinsurer’s statutory obligation to provide benefits to the employee. The reinsurer appealed to the Appeals Court of Massachusetts.

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Generally speaking, a property owner does not have a duty to prevent dangerous or harmful acts of third parties. Under Massachusetts personal injury law there is an exception to the general rule, in that a property owner can be held liable for ignoring criminal activity it knew or should have known was occurring on the premises. In Charles Northrup v. National Amusements, the Appeals Court of the Commonwealth of Massachusetts recently clarified that a property owner will only be liable for a criminal act occurring on its property if it had knowledge of prior similar acts.

In Northrup, the Plaintiff was sitting in his vehicle in the parking lot of the Defendant’s movie theater, when he was stabbed by an individual suffering from schizophrenia and other mental illnesses. Plaintiff subsequently sued the Defendant for negligence, alleging the Defendant’s failure to provide police protection on the premises caused his injuries. The Defendant filed a Motion for Summary Judgment, arguing the stabbing was not foreseeable. The trial court granted Defendant’s Motion and Plaintiff appealed. On appeal, the Appeals Court of the Commonwealth of Massachusetts affirmed.

The court noted that while police reports indicated there were thirty incidents at the movie theater in the three years prior to the incident, only three of the incidents resulted in an arrest, and only one incident involved a violent act. The remainder of the incidents involved theft and other property crimes. Additionally, the internal incident reports written by the Defendant indicated there were seventy-one incidents in the three-year period prior to the stabbing. While most of the incident reports did not indicate any criminal activity, four of the reports indicated violent acts, including one report of an incident in which rocks were thrown at children when they were leaving the theater.

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A Massachusetts car accident resulted in an estate filing suit against a convenience store chain after a speeding driver ran into the deceased as he crashed into the front of the store.  The deceased’s husband and executor alleged the company had experienced several front-of-store “car strikes” and knew of the risks cars had to its store.  The estate claimed bollards or other barriers could have been erected along the walkway and entrance to the parking lot.  The estate argued this would have prevented a car traveling at high speed from injuring anyone, particularly the deceased in this suit.  A jury agreed and awarded the estate over $32 Million in compensatory damages, eventually reduced by the court to $20 million; and $10 in punitive damages, which was waived since it did not meet the $5000 minimum.

The convenience store chain appealed, arguing it should have been granted a new trial after it improperly admitted an internal report about 485 prior car strikes at other stores.  The chain believed each accident referred to should have been subjected to a “rigorous” review to determine whether or not it was substantially similar to the accident in this suit.  At trial and during the appeal, the chain contended the accident was random and unforeseeable.  In response, the estate looked for reinstatement of the $32 million compensatory damages award, asserting the remittitur of the damages was improper. 

The location of the events was similar to other property owned by the chain gas station and convenience stores.  The store was surrounded by parking spaces for those stopping into the store as well as gas pumps.  No barriers or devices were set along the walkway.  The store was located at the “corner” of a three-way intersection that did not meet at 90 degree angles. Two of the three entrances to the property required drivers to slow down to make a turn and enter.  One did not.  This entrance allowed drivers to come straight from the apex of the intersection onto the property without reducing speed or turning.  The situation was dangerous enough for a store employee to complain to two separate managers, but nothing was done to alter the set-up of the property. 

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Lawsuits against government entities used to be very difficult to pursue.  For a long time, government entities were protected by sovereign immunity, a doctrine founded on the idea the “king”  could not be bothered with litigation.  Eventually, the Commonwealth’s legislature changed the reliance on this precedent by enacting the Tort Claims Act, G. L. c. 258, in 1978.  This allowed many more opportunities for lawsuits when employees of state or local government act in a negligent manner while performing work for the city or state government.  However, this statute still provides protection to the government through exceptions for allowed claims.  G. L. c. 258, § 10(j), inserted by St. 1993, c. 495, § 57 bars claims asserting a government employee acted, or failed to act, to prevent or diminish harm, including violent or tortious conduct of a third person, if it did not originate from a public employer or public employee. 

In a recent Massachusetts personal injury action, 17-P-230, the Massachusetts Appeals Court considered a student’s appeal from the dismissal of his negligence action against the school.  The student was injured during field hockey practice by another teammate, who struck her with a field hockey stick. The injury occurred during a drill supervised by a volunteer coach, but not the head coach.  The head coach was on the field but was not actively supervising the drill.  No warnings or techniques were provided to the student athletes to avoid injury.   The student was struck in the face, losing consciousness and two teeth.  The head coach did not implement concussion protocol, nor did he take any steps to stay with her and provide care.  As a result, the student had to have dental surgery and suffered academically due to a concussion.  The student and her parents filed suit, alleging the school failed to properly train and supervise the coaches and other athletes who were present during the incident, failed to provide adequate post-injury monitoring and assistance, and failed to create and use an academic reentry plan after the injuries.  The trial court granted the defendant’s motion to dismiss, finding G. L. c. 258, § 10(j) precluded suit against the school, a government entity. 

On appeal, the student and her parents argued the school caused the original action when the head coach allowed an untrained volunteer coach to supervise a new drill and left the field unsupervised with inadequate instructions.  The appellate court found the behavior to be omissions rather than affirmative actions, as required by the statute.  The court assessed the plaintiffs’ assertion to be an attempt to hold the school liable for failing to ensure the student’s safety during field hockey practice.

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