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Soon after a lengthy personal injury trial, the unsuccessful party can move for a Judgment Notwithstanding the Verdict and for a new trial, claiming that the evidence did not support the verdict handed down by the jury. This occurred in a recently issued Massachusetts Appeals Court decision, Ellis vs. Peter Clarke (15-P-868), in which the defendant doctor, an emergency radiologist, appealed a jury verdict in favor of the estate of a now-deceased patient. In this appeal, the defendant physician challenged the use of a witness and the conclusions drawn by the jury based on the evidence presented that his actions led to the death of the patient and grantor of the estate.

The defendant radiologist argued that the estate did not use an appropriate witness who was a standard radiologist, rather than an emergency radiologist. The appellate court listed several cites from case law, which has established the standards for a medical expert. A medical expert may be utilized to testify about many things, including the appropriate standard of care for a patient with the health issues around which the litigation centers. Massachusetts case law has specifically addressed that the expert does not have to be a specialist in the area concerned. The medical expert witness just needs to have the sufficient education, training, experience, and familiarity with the main subject matter of the testimony. The trial judge made a prior determination that the estate’s medical expert was qualified based on his experience reading chest x-rays from ERs, alongside his training and education.

The radiologist also questioned the judge’s ruling determining that the estate did not have to produce evidence showing the diagnosis of cancer should have been made by a certain date. The appellate court did not think a date was necessary, particularly since the law presumes that any warning, if given, will be heeded. In this case, the expert witness stated that the deceased patient would have had a greater chance of survival if the appropriate care had been used and she had been warned.
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In Massachusetts workers’ compensation claims, an award of partial incapacity benefits rather than total incapacity benefits can make all the difference to a worker and his or her family. It can be the difference between financial strain and an existence that resembles life before the accident. Massachusetts workers’ compensation law Ch. 152 §1(7A) allows compensation for workplace injuries that exacerbate pre-existing conditions, as long as there is a determination of whether or not the compensable injury remains a major cause of the disability or need for treatment. The workplace injury does not have to be the predominant cause of the disability. In Herrera vs. Mediate Management, Inc. (Bd. No. 010696-10), the Reviewing Board chose to return the case to the Administrative Law Judge for additional findings of fact regarding whether or not the compensable injury was a major cause of the disability. The board did so because it felt there was insufficient analysis in the determination of whether or not the janitor’s current medical condition entitled him to receive total incapacity benefits instead of partial incapacity benefits.

In this case, the janitor tore his medial meniscus and underwent physical therapy and arthroscopic knee surgery. The janitor testified that his pain did not abate, and he was unable to work in the same occupation due to this injury. The ALJ, in his findings, wrote that he agreed with the medical opinion of the insurer’s expert witness, which concluded he had a pre-existing condition that was unrelated to the injury and progressive in nature. However, he also wrote that he agreed with the janitor’s medical expert, who placed restrictions on the employee’s movement and opined that the work-related injury remained a major contributing factor to his need for treatment. The ALJ then concluded, based on the testimony of the impartial physician (which was not formally adopted), that the arthritis and continuing degeneration were not caused by the workplace injury. The judge went on to rule that the janitor could work light duty and qualified for partial incapacity benefits, but not total incapacity benefits.
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Since insurance coverage is mandated by law, most car accident victims must deal with one or more insurance companies when seeking compensation for injuries to their person and property. An insurance company must follow certain settlement guidelines found within Massachusetts’ General Laws in order to ensure fair claims settlement practices. In a recent case, Villanueva vs. Commerce Insurance Company (15-P-697), the Appeals Court looked at whether or not the at-fault party’s insurance company offered a reasonable settlement prior to the trial to an injured pedestrian.

The accident that forms the foundation of this action involved a woman who was seriously injured after she was struck by a motorist. The insurer of the driver independently determined that the injured woman was more than 50 percent negligent because she stepped out between two parked cars into traffic while wearing dark clothes on a dark morning. There was a witness to the accident who provided a statement that he saw a car driving too fast, leaving the scene of the accident right after the collision occurred. The driver stated that she circled the block after the impact because it was still dark, and she did not receive a citation from police when they arrived at the scene. The injured pedestrian had no memory of the accident.

After the accident, the plaintiff sought the limit of the driver’s policy, but only if the matter settled prior to filing suit. The at-fault driver’s insurer offered only $5,000 to settle the claim, instead of the $100,000 policy limit. The injured pedestrian then filed suit against the driver. The driver’s insurance company tried repeatedly to take testimony from the lone witness, but it was unsuccessful at reaching him until right before the scheduled date of trial. The jury awarded the injured pedestrian $414,500, reduced by the pedestrian’s comparative negligence of 35% in the accident. After the jury verdict, but before post-trial motions, the driver’s insurer paid the policy limit of $100,000.
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When an at-fault party is faced with a lawsuit, they will raise any and all legal defenses available to avoid liability. In all litigation, courts attempt to avoid duplicative processes to provide efficient and effective justice. The legal doctrines of res judicata and collateral estoppel bar re-litigating claims or issues that have been previously decided on the merits in a prior adjudication in a final judgment. In complicated personal injury and wrongful death lawsuits with multiple parties, doctrines like res judicata and collateral estoppel are often utilized to bar or limit claims an injured party, estate, or family member may have.

In Resto vs. City of Lawrence (14-P-1711), an 11-year-old boy was hit by a car crossing a street undergoing a lot of construction. A motorist driving his car at a high rate of speed hit the child, who died as a result of his injuries. The administratrix of the estate filed suit against the driver of the car as well as companies that were hired by the city to perform construction work at the high school. The estate alleged in an amended complaint that the construction companies did not take proper steps to mitigate the intersection’s pedestrian safety issues. A year after the original complaint was filed, the estate filed to amend a second time and added the Massachusetts city as a defendant. The estate alleged the city failed to maintain signage about the increased pedestrian and vehicular traffic.

The trial court judge denied the amendment, determining that the city did not owe a duty to the deceased boy and that its negligence was not the proximate cause of the accident. The companies hired by the city later filed motions for summary judgment, arguing that the court’s reasoning in its prior refusal to allow the addition of the city applied to them. The companies felt this logic should extend to them – that no duty of care was owed to the child who died, and that their negligence was not the proximate cause of the child’s injuries. The judge agreed, and the claims against the companies were dismissed through the court’s entry of summary judgments.
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Recently, the Supreme Judicial Court weighed whether or not an affidavit submitted by an administrator of an estate had to be based on personal knowledge. In Bayless vs. T.T.S. Trio Corp., (474 Mass. 215), the estate filed suit for a man who died after a solo car accident, which occurred after he left a restaurant bar he often frequented. The estate sought to hold the restaurant liable under the Commonwealth’s Dram Shop Act, G. L. c. 231, § 60J, which holds establishments responsible if they continue to serve alcohol to patrons when they knew or should have known the patron was intoxicated. As part of any civil action, the Act requires an affidavit to be filed within 90 days of filing the complaint. The defendant restaurant appealed the decision of the trial court, which allowed an affidavit submitted by the administrator as part of the initial pleadings. The Massachusetts Supreme Judicial Court decided to hear the case under an interlocutory petition for relief.

The affidavit described the deceased’s behavior throughout his patronage of the restaurant and the evening he died. The statement was made based on information gathered from several witnesses who had witnessed his excessive drinking, which often caused him to have impaired movement and speech. Witnesses also described conversations between the deceased person and an unnamed female bartender, who would continue to serve the decedent alcoholic drinks after he was clearly intoxicated.

On the evening of his death, the decedent was witnessed drinking at 4 P.M., when he proceeded to become drunk once again. He spoke to his daughter several times, who asked him to come home to a family barbecue. The daughter also spoke to the bartender mentioned above, who tried to assure her he was fine. This same bartender later told a different patron that she was concerned about the decedent because he hadn’t eaten anything. The bartender, as was her custom, continued to serve him alcohol, and he bought and drank 12 drinks while he was at the restaurant. The daughter, during her last call to him at 9 P.M., noticed his speech was slurred. Soon afterward, he died in a vehicle crash from multiple traumatic wounds.
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In Robert Amaral’s Case (15-P-860), the Appeals Court of Massachusetts reviewed whether or not it was appropriate for an administrative hearing judge to terminate a worker’s total weekly incapacity benefits. The worker injured his shoulder and lower back while helping restrain two juveniles at the Department of Youth Services. He originally received both total and partial incapacity benefits, but his employer, a self-insurer, filed to discontinue the total incapacity benefits.

The employer argued that the injured worker was no longer entitled to weekly benefits because the injury sustained at work was not a major cause of his continued disability. The administrative judge relied upon the employer’s medical expert witness, who opined that his disability mostly stemmed from his pre-existing spinal degeneration and obesity.

In all workers’ compensation cases, the judge is allowed to weigh the medical evidence presented in order to determine whether the injuries sustained by the worker were actually from the workplace and not aggravated by conditions preceding the accident or aggravated by circumstances outside of and unrelated to work. In this case, the injured worker appealed the judge’s ruling and the affirmation of the Reviewing Board, arguing that the judge had abused her discretion by adopting the medical opinion of the employer’s expert.
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There are many documents you can and should use for your Massachusetts estate plan. Medical care considerations can become especially complicated as you weigh the resources available to help cover the cost. The recent Massachusetts Appeals Court case of Heyn vs. Dir. of the Ofc. of Medicaid (15-P-166) reinforces a grantor’s ability to create an irrevocable trust, which could then make him or her eligible for Medicaid benefits.

In this case, the grantor, now deceased, created a self-settled irrevocable inter vivos trust, transferring the title to her home to the trust, while retaining a life estate interest that would not make her ineligible for Medicaid benefits. The grantor moved into a skilled nursing facility and applied for Masshealth benefits to pay for the cost of her care, which were originally approved. After a little over a year at the nursing facility, she was notified that her benefits were terminated based on the agency’s determination that the home held by the trust should be considered a countable asset, rendering her ineligible for benefits.

The grantor of the estate appealed, but she died before a decision was issued upholding the termination of benefits. The hearing officer determined that the trust allowed the trustee to sell the assets and invest the proceeds of the sale in other forms of investments, like an annuity. The officer reasoned that annuity payments can create income for the grantor, which should be considered a “countable asset” for determining Medicaid/Masshealth benefits eligibility. The Superior Court upheld the hearing officer’s ruling, and the case went on to the Appeals Court of Massachusetts.
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When an accident occurs in Massachusetts, it is not always immediately clear who should be held accountable for the injuries. Sometimes multiple parties are jointly liable, and other times one party may initially appear liable before being absolved through the litigation process or trial verdict. For example, if someone is injured by tripping on an object in a shopping mall, there may be liability due to the negligence of an employee of one particular store. This may be shared by the owner of the entire premises because a separate maintenance employee failed to clear the obstruction. Juries often divide liability, as well as the percentage of damages paid to the injured party, so it is important to file suit against all possible responsible entities.

In any situation, there may be additional relevant statutes that limit the amount of time an injured person has to provide notice of her or his intent to sue. The Appeals Court of Massachusetts recently issued an opinion, Landry vs. Mass. Port Auth. (15-P-253), which reviewed a delivery man’s action against two municipal entities for injuries he sustained at the regional airport. In this suit, the defendants jointly filed for dismissal, pointing to G. L. c. 84, § 18, which requires notice to file suit against a municipal entity within 30 days, if the injury happened in a right of way.

The deliveryman had been making deliveries of cleaned uniforms to the airport for several years, often with airport employees escorting him through the gates to his drop-off point. In the year before the accident, this procedure changed, and he was directed to park his truck in a certain location and walk through a remote-controlled gate to his drop-off point. On the date of his injury, the gate was partially opened but abruptly stopped after opening 3-4 feet. After waiting for some time, without further instructions from someone controlling the remote, he proceeded through the opening with the uniforms over his shoulder. He did not have much clearance to make it through, since a steel bar that was part of the gate was also in the way. The gate began to close while he was walking, causing him to suffer a fractured sternum. The man could not work for two months. The delivery man later learned from airport employees that this mechanized gate had been malfunctioning for a while.
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A named executor of a will holds a lot of power and responsibility over a Massachusetts estate. An executor’s tasks can go beyond distributing the testator’s assets. He or she can also manage trust funds or file and defend lawsuits on behalf of the estate. A recent appellate court case, In The Matter of the Estate of Elizabeth Lawry (15-P-374), looks at the obligations an executor has to the estate and its heirs. The executor appealed a ruling made at trial, in which the court ordered the executor to return $20,000 of his $30,000 fee to the estate, as well as pay $7,500 in attorneys’ fees.

Under a Massachusetts law, G.L. C. 190b, § 3-720, a personal representative of an estate who defends or prosecutes a proceeding in good faith is entitled to receive the necessary expenses and disbursements from the estate, including reasonable attorneys’ fees, regardless of whether or not the action is successful. However, a personal representative is also expected to act in good faith. Without this, the entitlement to attorneys’ fees becomes void. At trial, the judge looked at the overall picture of the executor’s performance of his duties. The judge ultimately did not feel that the executor acted in good faith because he did not record the time he spent settling the estate consistently with due diligence, charged a higher fee because the beneficiaries did not get along, made several mistakes while handling the estate, and caused unnecessary delays with the distribution of the assets.

One of the duties mentioned by the trial court in its order awarding the heirs attorneys’ fees was the duty to settle the estate expeditiously and efficiently. The court also looked at the excessive fee the executor paid himself. While an executor is entitled to attorneys’ fees for litigation, the court pointed out it was the executor’s own conduct that led to the litigation, so it was only fair that he pay the expenses of the litigation rather than the estate. The Court of Appeals agreed with this analysis and did not find any abuse of discretion on behalf of the trial court judge. The reduction of the executor’s fees and the award of the heirs’ attorneys’ fees was upheld.
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When a worker is injured, it is not always clear whether his or her current medical conditions and injuries happened because of the workplace or from life outside the workplace. To determine whether or not certain benefits should apply, administrative judges consider medical evidence and expert testimony from treating and reviewing physicians. In Bennett vs. Northeastern University (Board No. 038550-08), a self-insurer/employer appealed a decision in favor of an HVAC technician who was awarded temporary total incapacity benefits, followed by permanent and total incapacity benefits.

The injured employee worked as an HVAC foreman and later as an HVAC technician at a university. The employee originally claimed he suffered from a pulmonary injury arising out of his job, due to exposure to chemicals used by other workers stripping the floors in a locker room, as well as exposure to chemicals, solvents, dust, and fumes he was naturally exposed to in his own work as an HVAC technician. The judge at the original hearing heard from the injured employee’s primary care physician and treating pulmonologists. The judge also heard from the independent medical examiner used in accordance with these proceedings.

After hearing the testimony and reviewing the evidence, the judge found that the employee required medical treatment for breathing issues as a result of his exposure to the stripping materials. The judge noted that these substances aggravated a pre-existing breathing condition and that he will likely be unable to perform any HVAC work again in the future. Since the employer did not raise any issues with causality, the judge relied on the employee’s witnesses, since he only needed to prove “as is” causation. The employer objected to this assessment, arguing that the employee did not prove the employer’s liability for a work-related injury, that the condition was caused by the workplace, nor that he was truly disabled and incapacitated. The employer pointed to the failure of the judge to resolve factual conflicts in the testimony related to the employee’s proximity to the location where the floor stripping was performed, the day the employee fell ill, and the day the employee left work.
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