Articles Posted in Uncategorized

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penIn 2006, Scott Barrow admitted his mother at a nursing home in Massachusetts.  As part of the admission process, Scott filled out various paper work including consents for treatments, a physician consent, and a resident and facility arbitration agreement.  Around the same time his mother was admitted to the facility, she signed a health care proxy that designated her son to be her health care agent.  At no time was Scott ever a power of attorney over his mother.  Under M.G.L. c. 201D § 5:  An agent shall have the authority to make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy. 

Three years later, Ms. Barrows roommate at the facility attacked her and put a plastic bag over her head causing her death.  Scott filed a wrongful death action against the nursing home alleging that the roommate demonstrated a propensity for violence on numerous occasions while his mother was a resident at the nursing home.  Additionally, Scott claimed that due to the nursing home’s failure to address the violent tendencies of the roommate, his mother was caused to sustain a gruesome death.

After suit was filed, an attorney for the defense moved to compel arbitration of the issues based on the document that was signed by Scott for his mother’s admission to the nursing home facility.  Put differently, the defense argued that the estate of Ms. Barrows waived any and all right to a trial by jury based on the signing of the arbitration agreement when Ms. Barrows was being admitted to the facility.  A judge agreed with the defense and an arbitration followed.  Once at arbitration, the arbitrator determined that there had been no wrong doing on part of the nursing facility.  As a result, the claims against the facility were dismissed and the estate of Ms. Barrows was without recourse.  The estate of Ms. Barrows appealed the original decision of the court that compelled arbitration. Continue reading →

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shredderAs a precursor to becoming a lawyer, every hopeful bar applicant must be familiar with certain core foundations of law.  One of the most important, which governs almost every aspect of trials, are the rules of evidence.  These rules shape the way in which trials are to be conducted, how evidence may be admitted, how witnesses may be qualified to speak, and which statements may or may not be deemed “hearsay” for the purpose of testimony.  The federal rules of evidence range from rule 100 to rule 1000.  Along the way there are over twenty exceptions to issues such as hearsay.  Additionally, Massachusetts has a counter part to the federal rules called the Massachusetts Guide to Evidence, that details additional and somewhat different rules that need to be followed in the courts.

One of the more interesting concepts that is articulated within the rules is the notion of privilege.  Generally, a party may be able to prevent the introduction of certain testimony or evidence under this principle of law.  The party seeking to assert that the testimony or evidence is “privileged” must make a showing that it falls into a category of speech (or evidence) that has previously been deemed as a confidential and private.  For instance, under section 504 of the Massachusetts Guide to Evidence, “a spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse.”  Marriage has been an area of society that the legal system has deemed to be sacred, and therefore, impervious to the judicial system’s forced compulsion of speech- instead granting a privilege (or exception) to the general idea that one must testify when subpoenaed or called to the stand. Continue reading →

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handshakeWhen a person gets into an accident, suffers a loss, or attempts to remedy a wrongdoing, there is a mistaken belief that most cases culminate in a trial at district or superior court.  This is a falsehood.  Many cases are resolved between the parties through alternative dispute resolution such as arbitrations or mediations.  In some situations the court requires the parties to mediate, in other situations the parties have bound themselves to be before an arbitrator to adjudicate the case on the merits much like a judge and jury would.  Mediations and arbitrations are very different and have vastly different results.  We will look at each in turn.

To begin with, the ultimate hope for an arbitration or a mediation is that the parties resolve the matter.  This is called a settlement.  A settlement is normally effectuated by the parties dismissing the underlying action, or agreeing to waive any right to a trial by jury to pursue their causes of action, in return for the requested relief.  The requested relief is typically a sum of money that may or may not be disclosed depending on the confidentiality agreements the parties sign at the end of discussions.  Attorneys typically encourage settlement prior to litigation as juries are unpredictable.  Some of the greatest attorneys have lost what appear to be the best cases due to perceptions and insights of the members of the jury.  In many situations it is necessary for the parties to go to court when they cannot agree on what a person may (or may not) be entitled to.  In the event that the parties are open to meaningful settlement discussions they can come in two flavors: mediations and arbitrations. Continue reading →

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warningAs the end of the work day approaches, the streets are congested with employees exiting the premises to call it quits for the day.  Highways jam up with cars and trucks lining the road hoping to make it home before an unsavory hour.  In the month of December this situation can be magnified due to the unforeseen nature that New England weather bestows upon us.  This is something we have come to expect.  However, on December 10, 2011, when Richard Medina was traveling home from work, traffic and weather were the least of his concerns.

On that day, Robert Riskind was also traveling home from work and suffered a grand mal seizure.  As a result, he lost control of his vehicle and hit Mr. Medina.  The seizure that Mr. Riskind suffered was caused by an inoperable brain tumor that he had been receiving treatment for.  Dr. Hochberg had diagnosed him and was treating him for said condition.  As a result of the accident, Mr. Medina sustained serious and severe personal injuries that entailed a multitude of surgeries.

Mr. Medina brought a cause of action predicated in negligence against Dr. Hochberg, alleging that he owed a duty of care to him to control his patient’s behavior.  Additionally, Mr. Medina claimed that the doctor breached this duty of care by failing to warn Mr. Riskind not to drive.  After a few complicated procedural moves, the case was ultimately dismissed on the basis that the Plaintiff had not submitted enough material facts in dispute that rose to a triable level.  The Plaintiff appealed his case. Continue reading →

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gavelOnce a plaintiff files suit in court and the defendant answers the complaint, the parties enter into the discovery phase of litigation.  In the discovery phase, parties may submit written request for answers to the other side (interrogatories), request for the production of documents, requests for admissions, and notices of depositions.  The purpose of providing the opposing side with such information is to avoid surprise and the miscarriage of justice and to fully disclose the nature and scope of the controversy to narrow, simplify and frame the issues.  Once the discovery phase of litigation begins, attorneys may get the information necessary to win the case at trial or to craft a reasonable argument to encourage settlement prior to trial.  Essentially, the main purpose of discovery is “for the parties to obtain the fullest possible knowledge of the issues and facts before trial.” Hickman v. Taylor, 329 U.S. 495, 501 (1947).

Under Massachusetts Rules of Civil Procedure, Rule 26:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.

Failure to comply for discovery requests can have disastrous results.  In a case recently decided by the Appeals Court of Massachusetts, the Plaintiff’s suit against the Defendant was ultimately dismissed because she failed to comply with discovery requests by the defense.  The judge found that the Plaintiff had defied the court order and did so despite clear warnings by a previous judge that he would dismiss her case should she fail to produce requested tax documents.  On appeal the Plaintiff claimed that the failure to produce the requested documents was due to the negligence and/or inaction by her attorney.  The judge, in his discretion, found otherwise. Continue reading →

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pewLinda and Kenneth Patterson, members of a senior center in Georgia, took part in a sight seeing tour organized by the center that included stops along the east coast.  One of these stops included a visit to the Old North Church in Boston’s North End.  The church is said to be the location of the famous, “one if by land, and two if by sea” phrase associated with Paul Revere’s midnight ride prior to the Battles of Lexington and Concord during the American Revolution.  As Mrs. Patterson made her way through the historic church, she was directed to sit in the church’s pew boxes.  At the entryway to each pew box was a hinged door and single step riser that was painted a very similar color to the existing carpet on the floor.  As Mrs. Patterson went to enter the pew, she did not see the riser and fell onto the bench.  As a result, she sustained serious and severe personal injuries that required hospitalization and surgery.

Mrs. Patterson brought suit alleging negligence against the Defendant foundation that was responsible for organizing tours in the church.  Among the allegations, the Plaintiff claimed that she and her husband were not warned to use caution or to watch their step when entering the pew box and that the sanctuary was poorly lit.  Additionally, the Plaintiff claimed violation of the Consumer Protection Statute, Ch. 93a, which declares unlawful unfair or deceptive acts in the conduct of any trade or commerce.  Specifically, the Plaintiff alleged that the Defendant was liable under this statute because when she injured herself in the pew box, the church was not in compliance with Architectural Access Board accessibility requirements.

The Defendant, a nonprofit organization that organizes tours and historical programs at the church, argued that it was not liable under the recreational use statute in Massachusetts.  Under Massachusetts General Laws Ch. 21, s. 17C: Continue reading →

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helmetA seventeen year old boy was gearing up for the fourth quarter of a football game when he ran to the field and got ready for the play that would change his life.  The quarterback snapped the ball and the seventeen year old boy was involved in a helmet to helmet collision that knocked him unconscious immediately.  The boy, now a 21 year old man, was left partially paralyzed and without his short term memory.  Even after extensive physical therapy and occupational rehab, he relies on the assistance of a cane and is susceptible to seizures in any given moment as a result.  A lawsuit was filed against the manufacturer of the helmet, alleging an unsafe and/or defective design of the helmet pad, which was the alleged cause of the heartbreaking tragedy suffered by the young football player.

Similar cases have been filed against manufacturers of helmets across the country with factual situations like the above referenced case in California.  In Massachusetts, a case was recently filed against Riddell, Inc., the same manufacturer alleged with creating a defective helmet in the California case above.  The complaint, filed in Massachusetts, alleges that Riddell, Inc.’s failure to design the helmets to design and manufacturing specifications resulted in the following: Continue reading →

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stairsOn April 1, 2007 a Boston University student went with some friends to a bar and restaurant located in the heart of the city.  After spending some time in the establishment, the student walked down the hallway of the restaurant in order to find some quiet space in order to make a phone call.  He stood outside the kitchen and across from, what was later discovered to be, a staircase.  The staircase was not readily discernible due to the presence of hanging vinyl strips shielding its presence.  As the student proceeded with his phone call, he presumably lost his footing and tumbled down the stairs where he was unconscious until an employee of the restaurant found him lying on the floor.  After immediately being rushed to the emergency room, the student died two days later due to a basilar skull fracture and a subdural hematoma.  These injuries were received as a result of the fall.

The parents of the decedent brought a law suit in superior court in Massachusetts against the establishment claiming wrongful death and violations of Massachusetts General Laws Ch. 93A.  Ch. 93A, also referred to as the Consumer Protection statute in Massachusetts, details that:

“ Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Continue reading →

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to-sign-a-contract-3-1221952-mAs previously discussed, the Wrongful Death statute in Massachusetts allows for the Personal Representative of an Estate to commence an action for damages against a Defendant for his or her negligence which causes death. In the past few years, issues have arisen as to whether such a law suit can commence when the person who has died (the decedent), or their representative, has previously signed an agreement with the Defendant that limits court actions in favor of binding arbitration. The Supreme Judicial Court of Massachusetts has recently had an opportunity to decide this very issue in Johnson v. Kindred Healthcare, Inc., as well as a slew of companion cases.

In the Johnson matter, Dalton Johnson was admitted to a nursing care facility operated by the Defendant organization. Prior to his admission at the nursing facility, he had executed a health care proxy which authorized his wife to act as his “health care agent” relating to “health care decisions.” In her capacity as Health Care Proxy, the wife of Mr. Johnson admitted him into the facility for long term care and treatment. As part of the admission process, she was asked to sign an agreement with the Defendant to submit any disputes that arise between the parties for resolution by mediation and/or arbitration (often referred to as an “arbitration agreement.”) Approximately one year later, Mr. Dalton suffered severe burns and was taken to a hospital where he succumbed to his injuries. The wife of Mr. Dalton brought suit against the Defendant claiming a variety of claims predicated on Wrongful Death.

Continue reading →

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brokenness-1-656297-mUnder products liability law in Massachusetts, a consumer has the ability to pursue a variety of claims against a manufacturer, distributor, store owner, and/or any other organization that puts a defective product into the stream of commerce. Normally, a claim for products liability is also referred to as a “breach of warranty” claim under the Uniform Commercial Code. Warranties come in two flavors: express and implied.

An express warranty arises from any affirmation, fact, or promise made by the seller to the buyer that relates to the goods. Under the Uniform Commercial Code, express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise;

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

Continue reading →