Published on: |

In a civil lawsuit, the complaint sets forth the plaintiff’s claims against the defendant, and if the allegations in the complaint are not properly pleaded, the complaint may be dismissed. Thankfully, Massachusetts’s liberal standards typically allow a plaintiff to file an amended complaint even if the initial complaint was dismissed. A plaintiff who wishes to pursue a claim following a dismissal of the complaint must comply with the statutory requirements, however, including the statute of limitations, or his or her claim may be barred in its entirety. Recently, the United States District Court for the District of Massachusetts analyzed whether a plaintiff is barred from pursuing claims if the statute of limitations runs after the initial complaint is dismissed but before the amended complaint is filed, in a case in which the plaintiff alleged he was harmed in the workplace. If you suffered a work injury, it is advisable to speak with a Massachusetts personal injury attorney regarding your potential causes of action.

Factual and Procedural Background of the Case

It is reported that in January 2016, the plaintiff was injured in an industrial accident while at work. He filed a workers’ compensation claim following the accident and received a settlement. In January 2019, the plaintiff filed a lawsuit in the Massachusetts courts alleging negligence claims against the defendant corporation that owned the facility where the accident took place and the container that exploded, causing him harm, and other entities that distributed the container. The defendants removed the case to federal court and filed motions to dismiss, arguing lack of personal jurisdiction and failure to state a claim.

It is alleged that in July 2019, the court granted the defendants’ motions, dismissing the plaintiff’s complaint without prejudice and allowing him thirty days to file an amended complaint. The plaintiff filed an amended complaint later that month, after which the defendants filed motions to dismiss, arguing that the amended complaint was barred by the statute of limitations. In opposition, the plaintiff argued that the amended complaint was timely under the relation-back theory.

Continue reading →

Published on: |

Slip and fall accidents are a common cause of personal injury in Massachusetts. While a slip and fall accident can occur anywhere, some businesses, such as grocery stores and restaurants, experience a greater number of slip and fall accidents due to the increased likelihood of a by debris or liquid on the floor, causing a dangerous condition. As demonstrated in a recent Massachusetts appellate court case, regardless of where a fall occurs, a plaintiff seeking to recover damages in a slip and fall lawsuit must produce sufficient evidence to establish that the defendant could have prevented the plaintiff’s harm and, therefore, should be held liable for the plaintiff’s injuries. If you were injured in a slip and fall accident in Massachusetts, it is prudent to speak with an assertive Massachusetts slip and fall attorney to discuss what claims you may be able to pursue.

Facts and Procedure of the Case

It is reported that a surveillance video showed a child dropping a bottle on the floor of an aisle of the defendant’s grocery store. Approximately three minutes after the child dropped the bottle, the plaintiff fell in the same area. The plaintiff did not see anything on the floor prior to the fall, but after she fell, she observed a brown, sticky substance on the ground. The plaintiff sustained injuries to her shoulder, knee, and hip in the fall and subsequently filed a negligence claim against the defendant.

Allegedly, there was no evidence introduced at trial that the defendant had knowledge of the substance prior to the plaintiff’s fall, but its employees were trained to inspect the aisles for spills or other hazards, and if they discovered a spill how to prevent harm prior to when the spill was cleaned. A jury found in favor of the plaintiff, awarding her $50,000. The defendant appealed, arguing that the trial court erred in instructing the jury regarding constructive notice or mode of operation.

Continue reading →

Published on: |

It is not uncommon for a victim who has suffered injuries to name more than one defendant in a civil lawsuit. While naming multiple defendants allows a plaintiff to seek compensation from anyone liable for his or her harm, it may present issues in resolving claims against the defendants individually. This was demonstrated in a recent personal injury case decided by a Massachusetts appellate court, in which the court vacated a defendant’s order for certification of separate and final judgment. If you suffered harm due to the negligence of multiple parties, it is in your best interest to meet with a knowledgeable Massachusetts personal injury attorney to assess the claims that you may be able to pursue.

Factual Background of the Case

The plaintiff was a tenant of the defendant property owner. The stove in the plaintiff’s apartment was defective, but, rather than replace it, the defendant property owner hired the defendant repair company to repair the stove on three different occasions. The defendant repair company ultimately advised the plaintiff that the stove was fixed. When the plaintiff attempted to light the pilot light after it went out, however, he suffered severe burns on his right hand. He subsequently filed a lawsuit against both defendants.

The plaintiff and the defendant repair company reached a settlement and executed a release. The defendant repair company then filed a motion for entry of a final and separate judgment. The defendant property owner opposed the motion on the grounds that it was not warranted and that he had outstanding claims for indemnification. The judge granted the motion regardless, and the defendant property owner appealed.

Continue reading →

Published on: |

In many instances in which a person suffers a debilitating injury, the person will be unable to do any meaningful work and therefore cannot earn a living. In such cases, the person may file for Social Security Disability Insurance Benefits (SSDI). SSDI is not always granted, however, even if the claimant provides ample evidence of his or her injury if conflicting evidence is presented regarding the claimant’s lack of disability. In a recent case ruled on by the United States District Court for the District of Massachusetts, the court discussed what weight should be given to conflicting evidence when evaluating entitlement to SSDI. If you were injured and can no longer work, it is prudent to consult a seasoned Massachusetts social security disability attorney to discuss your case and whether you may be able to recover benefits.

Facts of the Case and Procedural Background

It is reported that the claimant sustained an injury to his shoulder while working as an order picker at a warehouse. He subsequently filed a disability claim due to complex regional pain syndrome/reflex sympathetic dystrophy syndrome. His application was denied, and a subsequent reconsideration was denied. He then requested a hearing with an administrative law judge (ALJ). The ALJ issued an unfavorable decision, which became the final decision, and the claimant appealed. On appeal, the claimant argued that the ALJ committed an error by failing to give the claimant’s treating care provider controlling weight. Instead, the court adopted the findings of the physician who conducted an independent medical examination and opined the claimant did not have a physical disability.

Weight of the Evidence of Disability

On appeal, the court stated that under the treating source rule of the Social Security Administration, an ALJ should give greater weight to the opinions of claimants’ treating physicians, as they are the people most likely to be able to provide detailed pictures of the claimant’s disability. Further, the rule notes that a treating physician may have medical evidence that cannot be obtained solely from an independent medical examination. The court further explained that a treating physician’s opinion will be given controlling weight unless it is not supported by medically acceptable techniques, or is inconsistent with other substantial evidence in the record.

Continue reading →

Published on: |

In any civil lawsuit, the parties will engage in discovery during which they will exchange documents and depose witnesses to attempt to obtain facts in support of their position. Not all materials are discoverable, however, as certain information is protected by privilege. In a recent product liability case in which it is alleged that medication caused birth defects,  the United States District Court for the District of Massachusetts discussed when a plaintiff can be compelled to disclose information relied upon by and obtained from a consulting expert. If you were or a loved one suffered injuries due to  a defective product you should speak with a trusted Massachusetts personal injury attorney about your potential claims.

Facts and Procedure of the Case

It is reported that plaintiffs filed a lawsuit against the defendant setting forth product liability claims alleging that  drug manufactured by the defendant and prescribed to pregnant women caused birth defects in their children. In part, the plaintiffs relied on a report by an expert third-party witness, in support of their argument that the defendant’s drug caused birth defects. The defendants sought to depose the third-party witness, and sought documents regarding the relationship between the plaintiffs’ attorneys and the third-party witness via discovery. Plaintiffs and the third-party witness both filed motions for a protective order arguing that the documents sought were protected by the work-product doctrine. The court ultimately denied the motions, finding that the documents were not privileged.

Continue reading →

Published on: |

When a person is injured by a national corporation, pursuing damages against the corporation can be complicated. For example, the injured person must show that the court can exercise jurisdiction over the corporation and that the corporation can be held liable under the claims asserted, otherwise the injured person’s claims may fail. This was demonstrated in a recent case in which a plaintiff sought to hold a national drug company responsible for harm caused by a contrast agent administered during an MRI. If you sustained injuries due to the negligence of a corporation, it is prudent to meet with a skillful Massachusetts personal injury attorney to discuss what damages you may be able to recover.

Facts of the Case

It is reported that the plaintiff underwent an MRI, during which he was given an injection of a gadolinium-based contrast agent, that was manufactured by the defendant. Following the MRI, the plaintiff suffered gadolinium retention in several organs, which caused him to suffer emotional and physical injuries. He filed a lawsuit against the defendant, alleging the defendant failed to warn the patient adequately of the risks associated with gadolinium. The defendant filed a motion to dismiss, arguing, in part, that the court lacked personal jurisdiction over the defendant, and that the plaintiff’s claims were preempted by federal law. The court granted the defendant’s motion but granted the plaintiff leave to amend the complaint.

Exercising Personal Jurisdiction Over an Out of State Corporation

A court can exercise general or specific personal jurisdiction over a defendant. In the subject case, the plaintiff conceded that the court did not have general personal jurisdiction over the defendant. Thus, the court’s analysis focused on whether specific personal jurisdiction could properly be exercised over the defendant.

Continue reading →

Published on: |

In Massachusetts, the duty a property owner owes to visitors of the property depends in part on the status of the visitor. For example, property owners owe a minimal duty to trespassers as opposed to those lawfully permitted to enter the property. There is an exception for child trespassers, however, who are owed greater protection from harm. Recently, the Appeals Court of Massachusetts, Essex, discussed what duties property owners owe child trespassers, in a case in which a child was harmed after unlawfully entering a property. If you or your child were injured on another person’s property it is prudent to meet with a seasoned Massachusetts personal injury attorney as soon as possible to discuss your potential causes of action.

Facts of the Case and Procedural Background

Reportedly, the defendant owned an apartment complex that abutted railroad tracks. A fence separated the defendant’s property from the tracks, but there were large gaps and holes in the fence that adults and children used to pass through the property. The plaintiff alleged the defendant was aware that people used the holes and gaps in the fence to access the adjacent property but did not repair the fence.

It is alleged that the plaintiff, a thirteen-year-old girl, walked through the fence and over the railroad tracks with a friend to go to a nearby plaza to go shopping. On the way back from their shopping trip, the friend was struck by a train. The plaintiff attempted to perform CPR on the friend, but the friend died from her injuries.

Continue reading →

Published on: |

Car accidents are common in Massachusetts, and people involved in car accidents often sustain injuries and property damage. Thus, in many cases, a person who incurs damages due to a car accident will pursue claims against one of the drivers involved in the accident. There are numerous categories of damages a person can recover following a car accident, including damages for pain and suffering. Recently, the Appeals Court of Massachusetts discussed what a plaintiff must prove to recover damages for pain and suffering following a car accident, under Massachusetts law. If you suffered harm due to a car accident, it is advisable to speak with a diligent Massachusetts personal injury attorney regarding what damages you may be able to recover from the party that caused your harm.

Factual and Procedural Background of the Case

Allegedly, the plaintiff was riding as a passenger in a vehicle owned by a Vermont resident, when they were involved in an accident with a driver from Massachusetts. The plaintiff reportedly sustained injuries in the accident and subsequently asserted claims against the Massachusetts driver, the Vermont driver, the insurance company of each driver, and his own insurance company. Subsequently, each of the plaintiff’s claims was dismissed,with the exception of the negligence claims against each driver. A jury found that the Massachusetts driver was negligent but that her negligence was not the cause of the plaintiff’s alleged harm and, therefore, entered judgment on her behalf. The plaintiff appealed.

Recovering Damages for Pain and Suffering Following a Car Accident

On appeal, the court noted that during the trial, the plaintiff expressed that he was only seeking damages for pain and suffering from the Massachusetts driver. As such, he was required to prove his injuries met one of the enumerated threshold requirements set forth under Massachusetts law. Specifically, in Massachusetts, a plaintiff can only recover damages for pain and suffering in a lawsuit arising out of a motor vehicle collision in certain circumstances, which includes when the plaintiff’s medical expenses exceed $2,000.00.

Continue reading →

Published on: |

In Massachusetts, property owners generally have a duty to maintain their property in a reasonably safe condition for any lawful visitors. There are exceptions to the general rule, however, such as when the harm presented by a dangerous condition is open and obvious. Recently, the Appeals Court of Massachusetts discussed the open and obvious exception to a property owners’ duty to warn of hazardous conditions, in a case in which a child was injured while using a zip line. If you or your child were injured on someone else’s property, it is wise to meet with a seasoned Massachusetts personal injury attorney to discuss what you must prove to establish liability.

Factual Background

Allegedly, the older brother of the minor plaintiff spent the night at the home of the defendants. The next day, the minor plaintiff, who was six years old, accompanied his father to the home of the defendants to pick up his brother. When they arrived at the defendants’ home, the minor plaintiff noted a zip line in the backyard.

Reportedly, the minor plaintiff asked his father if he could use the zip line. The father lifted the minor plaintiff onto the zip line and guided him for a few feet and then let him go. The minor plaintiff fell shortly after that, sustaining multiple fractures. The minor plaintiff’s mother instituted a negligence claim against the defendants on behalf of the minor plaintiff, arguing that the zip line was unreasonably dangerous. The defendants filed a motion for summary judgment, which the trial court granted. The plaintiffs appealed. On appeal, the court affirmed.

Continue reading →

Published on: |

Under Massachusetts law, even if a party obtains a successful verdict at trial, the other side has the right to appeal. As with all civil pleadings, however, if a party fails to file a notice of appeal within the time required by law, it may result in a dismissal of the appeal. In a recent personal injury case decided by the Appeals Court of Massachusetts, the court explained what constitutes excusable neglect that would permit a party to file a late notice of appeal. If you suffered personal injuries due to someone else’s negligence, it is in your best interest to meet with a Massachusetts personal injury attorney adept at helping injured parties recover compensation to discuss your case.

Factual and Procedural History of the Case

It is alleged that the plaintiff suffered hip injuries while working at a site owned by the defendant.  He subsequently filed a personal injury lawsuit against the defendant. A jury found in favor of the plaintiff, and the defendant filed a motion for a new trial. The court denied the motion. Pursuant to the rules of appellate procedure, the defendant had thirty days to file a notice of appeal. The defendant did not file a notice, however, until eight days after the deadline had passed. The court permitted the late notice of appeal, after which the plaintiff appealed the order allowing late notice.

Excusable Neglect Permitting Late Filing

Pursuant to the Massachusetts Rules of Appellate Procedure, a party appealing a civil case is required to file a notice of appeal within thirty days of when the court enters a judgment or order denying a motion for a new trial. If a party misses this deadline, the court can only permit a motion for leave to file a late notice of an appeal if the party demonstrates excusable neglect. Excusable neglect is only meant to apply in extraordinary or unique circumstances, and not merely a delay caused by everyday oversight. Rather, excusable neglect should only be a valid explanation when it is required to remedy emergency situations.

Continue reading →