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Before any jury trial, the attorneys for the parties to the lawsuit can speak to, question, and make strikes of citizens within the jury pool to shape the eventual panel that hears the case and decides whether liability exists and which (if any) damages to award. This is known as voir dire. Like any part of a trial, voir dire must follow the guidelines established through statutes and case law. If not, a party has the right to appeal on this issue.

A recent Appeals Court case case (15-P-1421) analyzes whether or not a ruling regarding voir dire was sufficient to warrant the dismissal of the injured party’s motion for a new trial.

The injured party was seriously injured as a passenger during a car accident involving two vehicles. She had left a social event with friends to go to a fast food restaurant. She was in the front passenger seat. The driver merged onto the road and intended to enter the left travel lane and cross the two opposite lanes to enter the parking lot. The driver saw the other defendant’s car’s headlights in the distance traveling toward them in the opposite lane, but she thought that she had enough time to turn. The oncoming driver hit the car and ejected the plaintiff from the vehicle, causing serious, permanent injuries to the plaintiff.

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In a medical malpractice action, it is essential to have proper medical experts. Medical experts help show the defendant medical provider failed to meet the standard of care for that particular specialty. The Appeals Court recently issued a decision, Russo v. Fisher (15-P-1264), which reviews whether or not a summary judgment was appropriate in a medical malpractice action. The patient alleged that the defendants failed to diagnose his subdural hematoma in April 2011, which was diagnosed a month later. The appellate court looked at whether or not the injured patient provided enough evidence through an expert witness to show that the emergency room physicians did not meet the standard of care.

The injury occurred after the patient carried a large bathtub up the stairs in February 2011. He suffered neck pain soon afterward. Twice in March and once at the end of April, the injured man came to the same emergency room and was seen by three doctors. Each time, he complained of neck pain. On the second visit, an x-ray was taken of his cervical spine, and it showed a normal result. He was diagnosed with torticollis (known as “twisted neck”), paracervical strain, and cervical strain. Each time, he was prescribed medications and noted to not have neurological deficits.

The injured man then went to a primary care physician in May. No neurological deficits were found in the first visit, but the injured man was diagnosed with a neck spasm. On the second visit, less than a week later, the injured man complained of neck pain radiating to the head and changes in personality. The doctor ordered a CT scan and referred the injured man to neurology. Twelve days later, the CT scan revealed a subdural hematoma, which resulted in a craniotomy and a follow-up surgery for an infection.

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When filing a lawsuit in Massachusetts’ civil court system, the alleged at-fault party must be notified properly. When the at-fault party is an employee of a company, notifying the right person can get complicated. A recent Appeals Court case reviews the notice requirement under the Massachusetts Tort Claims Act, G.L. c. 258. In this case, a woman was injured by a city bus as she was entering another vehicle. She filed suit two years after the accident, and the Massachusetts Bay Transportation Authority (MBTA) answered, raising the affirmative defense that she did not properly give notice under G.L. c. 258, § 4.  The trial court overruled the second motion by the MBTA to grant summary judgment in its favor, and the MBTA appealed.

G.L. c. 258, § 4 requires that notice of any tort claim against a public employer be presented to its executive officer within two years after the cause of action arises. Under the MBTA, this would have been the general manager and the rail and transit administrator. In this case, the injured woman sent notice of her claim to the “Claims Department” but not to the executive officer. The MBTA appealed, arguing that the notice did not comply with G.L. c. 258, § 4. The trial judge disagreed. The motion was overruled, the judge determining that there was notice.

Both parties agreed on the occurrence of several events. They agreed that the injured person’s attorney at the time sent out timely notice of the claim and that the injured person didn’t attempt to personally communicate during the two-year period after the accident and didn’t know what other communication may have occurred between her attorney and the MBTA during this time. The MBTA agreed that it had made a settlement offer to the injured person and other plaintiffs and that the other plaintiffs accepted their offers and settled their cases. The court determined that the MBTA had actual notice, based on the actions of the claims department. The court ruled that it fell under the “actual notice” exception, which overlooks a deficiency when there’s evidence the executive officer did know, thus fulfilling the presentment requirement.

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In a recent Appeals Court case, the court looked at whether or not a business was responsible for taking care of the abutting sidewalk. For any personal injury lawsuit to move forward in Massachusetts, the injured person must show that the defendant owed him or her a duty under the law. Businesses must use reasonable care to keep their premises safe. In this premises liability lawsuit, the question centered on what the scope of responsibility was for the defendant businesses.

The injured person fell on black ice outside a commercial area and filed a negligence action against parties connected to the business abutting the sidewalk. The defendants moved for summary judgment, arguing that there was no duty upon them to reasonably maintain the sidewalk for the injured pedestrian. The defendants also argued that there was no proof that they created the unsafe conditions on the sidewalk. The trial court agreed, dismissing the action. The appellate court took up the injured pedestrian’s appeal, affirming the lower court’s ruling.

In its decision, the Appeals Court pointed to the local ordinance, which places a limited duty on landowners to remove snow and ice from adjacent sidewalks. The appellate court stated that the businesses owed a general duty to the municipality but not specifically to injured pedestrians. The court hinged its distinction on a prior 2010 ruling in Papadopoulos vs. Target, 457 Mass. 368 (2010). This case also involved a slip and fall on a patch of ice in front of a store. The injured pedestrian also filed suit against the store and the maintenance company. The main legal issue revolved around the “Massachusetts rule,” which distinguished between natural and unnaturally accumulated ice. The court chose to abolish that distinction, but it did emphasize the duty property owners have to take care of their property. That summary judgment for the defendants in Papadopoulos was vacated, but the Appeals Court in the present case distinguished that case by the fact that the injury occurred on the property, in the parking lot, as opposed to on a public sidewalk. The court in this case ruled that the defendants owed no duty of care to the injured pedestrian and that there was no reasonable chance to prove that the black ice was caused by the businesses. The dismissal stayed in place.

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One workers’ compensation benefit that may not be as well known is the benefit provided for harm to a worker’s mental health. Like physical injuries, these injuries must be caused by an accident that occurred in the workplace or during the performance of work-related duties. The Reviewing Board decision of O’Rourke v. New York Life Insurance (Bd No. 012706-11) reveals the considerations an ALJ must make when determining whether or not to award medical and total incapacity benefits for injuries that affected both physical and mental health.

In this lawsuit, the injured worker was a vice president of marketing and held a Master’s degree in Science and Administrative Studies. She was injured when a magnet weighing half to three-quarters of a pound fell from a door jamb onto her forehead. The woman was taken to the hospital and diagnosed with a concussion. Her injuries produced severe headaches and tingling along the left side of her nose and face, around her jaw, and up the other side of her face. The woman additionally suffered lower back and neck pain. She returned to work within a week part-time, and eventually she returned full-time. However, the pain, combined with depression and anxiety, prevented her from concentrating and fully functioning at her job.

The injured worker attempted various schedules, both part-time and full-time, while also seeking treatment for her numerous injuries. Two surgeries were performed in order to reduce the headaches and pain in her jaw. While the surgeries were partially successful, they failed to fully remove the pain in her jaw and teeth. After three years passed, the worker’s surgeon opined that she was unable to continue working. The worker claimed partial disability benefits from August 1, 2013 to September 15, 2014, and then total disability from September 16, 2014 onward. The judge ordered that the benefits be paid based on her earnings from August 1, 2013. All parties appealed.

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Underinsured motorist benefits are designed to help pay for costs related to a car accident when the at-fault party’s insurance policy falls short. Underinsured coverage is generally elective, and several cases have looked at whether or not benefits were explicitly rejected. In Progressive Direct Ins. Co. v. Wilson (16-P-544), a mother and a son appealed a declaratory judgment entered in favor of the mother’s auto insurance company. The insurer claimed that the policy only provided underinsured benefits to members of the household, and the son was not a member of the household as defined by the policy.

The mother and son argued that the court erred by granting the insurer’s motion, and the insurer should be estopped from denying the son benefits based on a conversation the mother had with a representative.  The appellate court looked first at the mother’s policy, which provides damages to “any household member…while occupying an auto not owned by you.” The household member must be related by blood, marriage, or adoption. To counter the mother and son’s claim, the insurer provided medical records, a driver’s license, and a lease to show that the son lived in Unit One of the building, rather than Unit Two, where his mother resided. The insurer also pointed to a conversation the mother held with an insurance representative prior to the purchase of her policy. In that conversation, the mother stressed that the son did not live in the unit with her and that he lived downstairs.

At the lower court, the mother and son insisted that they did live in the same household, pointing to all of the parties doing laundry in Unit One, the fact that both units were always accessible to the other members of the family through unlocked back doors, and the tradition of the mother cooking for the entire family. The mother viewed the conversation with the representative as proof that she relied on the representative in her understanding of the policy. The court disagreed, finding that estoppel was not applicable in this circumstance. For estoppel to occur, there must be a representation that is intended to induce reliance, an act or omission by the person because of the reliance, and a detriment as a consequence. The court did not think the mother could come away from the conversation with the mistaken understanding that her son was covered under the policy because the bulk of the conversation dealt with where he didn’t live. The representative did not make any statement or implication that the son did not need to be listed in order to receive underinsured benefits. There was no mention of underinsured motorist coverage. The lower court’s ruling was upheld, and the declaratory judgment against the insured and her son remained intact.

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Most would agree that it is challenging to deal with any type of car accident, regardless of the level of the injury. In Adams vs. Congress Auto Insurance Agency (15-P-452), the injured driver had to unfortunately deal with an at-fault party who not only struck his vehicle but also called posing as a state police officer, attempting to intimidate him. The at-fault driver was chased by the police while driving his girlfriend’s car, ultimately wrecking it. The girlfriend, when filing her claim for her wrecked vehicle, also looked at the private information of the injured driver and provided this information to her boyfriend, which allowed him to make this call.

Eventually, the girlfriend and the boyfriend both pled guilty to criminal charges, admitting that they attempted to intimidate the injured driver. The individual involved in the accident then pursued civil action against the girlfriend’s employer, claiming that they were liable for the misuse of her position. Three years before this accident, the girlfriend had an encounter with law enforcement in Iowa. Two loaded semi-atomic weapons were found in her purse. She was eventually released on bail and returned to work at the agency. Eventually, she was arrested by the U.S. Marshals Service at her workplace. Her manager advised the owner of the company of this arrest, but the owner conducted no independent examination of the arrest or the underlying case, figuring it did not have much to do with her employment. The girlfriend was allowed to continue work. Seven weeks later, the car accident that gave rise to this case occurred.

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Massachusetts General Laws c. 152, § 11A(2) of the Workers’ Compensation Act states that an impartial medical examiner is to be used whenever there is a dispute within a claim or a complaint over medical issues that is the subject of an appeal. In order to offset the cost of the medical examination, the injured worker must submit a fee equal to her or his average weekly wage in the Commonwealth at the time of the appeal. A failure to do so can quash the appeal, as seen in the Reviewing Board decision of Saini v. Jeffco Fibers, Inc. (Board No. 044894-91).

In this case, the employee had a work injury in 1991 and settled four years later for $145,000. Eleven years after the settlement, the injured worker filed a claim for the payment of medical bills, which was denied by the ALJ. A timely appeal was filed but was not accompanied by the appeal fee. Notice was sent to the claimant’s attorney, but the fee remained unpaid. A month after the notice of the overdue fee was sent, the case was withdrawn. The injured employee’s attorney complained after the withdrawal, but the ALJ kept it in place, pointing out that the impartial medical examination was not waived by the insurer. A second and third claim were filed but were also withdrawn. Eventually, at another hearing, an ALJ formally denied and dismissed the claim for medical benefits, tying it back to the original submission and pointing out that the failure to pay the fee amounted to an acceptance of the order under General Laws c. 152, § 10A(3).

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At an administrative hearing for Social Security Disability, the administrative law judge (ALJ) may hear from a vocational expert (VE) to help determine whether or not the applicant qualifies for SSDI benefits. The vocational expert provides impartial expert opinion evidence that gives insight on the physical and mental demands of a job, the work setting, the type of labor performed in a certain job, and whether certain skill sets are transferable. The Eighth Circuit Court of Appeals case Gieseke v. Colvin (No. 14-1395) reveals the effect a VE’s opinion can have on an SSDI claim.

In Gieseke, the claimant suffered a long history of low back pain, which worsened following a work injury. The claimant went to physical therapy and returned to work with restrictions for several more months. He applied for disability, citing the lower back issues, leg problems, and dizziness as reasons he could not work. At the hearing, the ALJ found that he had a history of degenerative disc disease of the lumbar spine, obesity, and a history of substance abuse. Regarding his physical abilities, the judge found that while he was unable to perform his past relevant duties, his residual functional capacity (RFC) showed he had the ability to perform light work. The ALJ made these determinations based on the VE’s testimony and found that the claimant could work as a cashier, security guard, or usher. Since the claimant had the ability to work, his SSDI benefits were denied.

On appeal, the claimant argued that the ALJ did not give enough weight to the testimony of the claimant’s treating physician. The claimant’s physician testified that he was limited to lifting less than 10 pounds occasionally or frequently, standing for less than two hours a workday, frequently changing seated positions during the workday, and never climbing, crouching, stooping, crawling, or kneeling. This contrasted with the ALJ’s finding he could lift and carry 20 pounds occasionally, lift and carry 10 pounds frequently, stand and sit for six hours a day, and sometimes balance, stoop, crawl, kneel, or crouch. The treating physician’s assessment would have limited the claimant’s ability to do almost any type of sedentary work.

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When an accident occurs outside a business on a walkway, it can be initially difficult to tell who is responsible for a walkway when there are hazards. A recent Appeals Court case, Halbach v. Normandy (15-P-1500), discusses how liability is determined when the sidewalk right outside a business actually belongs to the city or another property owner. In this case, the injured man suffered serious injuries after he fell on uneven pavement outside a parking garage.  The sidewalk was public property. The building was maintained by a separate group, which the injured man alleged was responsible for repairing the sidewalk or warning pedestrians of any hazard.

The managing company moved to dismiss, and the trial court granted it. To prove negligence occurred, one must show that a duty existed under the law. Under premises liability case law, the owner or manager of a business must use reasonable care to protect guests from harm. However, the scope of the duty created only extends to areas for which the business is actually responsible. The lower court ruled in this case that the managing company did not owe a duty to the injured pedestrian. The appellate court looked at whether the lower court was correct in its determination and also addressed whether the scope of the duty should be extended.

The injured pedestrian tripped and fell near a garage. The pavement was uneven on the sidewalk owned by the city, which was adjacent to the garage maintained by the defendants. After the accident, the managing company hired someone to grind down the uneven pavement. The injured pedestrian initially argued that the managing company exercised control over the sidewalk, and because of this control, it owed a duty to the injured party. The Appeals Court pointed out that the duties of an owner of property abutting a sidewalk or another public way are limited. Case law states that an owner cannot create a hazardous condition that could interfere with travel but does not have an affirmative duty to keep a public sidewalk clear.

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