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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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worryIt is commonly understood that when a person or organization causes a physical injury to another, through negligence, that the injured party may recover for his or her injuries.  The injured party must show that the Defendant owed a duty to him or her and that by breaching this duty, the injured party was caused to sustain damages.  In a traditional case, the damages aspect of negligence can be shown through medical records, bills, photographs, or other tangible, documentary evidence.  However, when the complained of harm is intangible such as emotional harm or injury- there is a different cause of action that an aggrieved party can utilize to be compensated- Intentional Infliction of Emotional Distress.

The court has articulated a four prong test in order for a person to successfully recover under the theory of intentional infliction of emotional distress.  In Agis v. Howard Johnson Co., the court held that a plaintiff must show:

  1. that the defendant intended to inflict emotional distress or that he knew, or should have known, that emotional distress was the likely result of his conduct;

  2. that the defendant’s conduct was extreme and outrageous, beyond all possible bounds of decency, and was utterly intolerable in a civilized community;

  3. that the actions of the defendant were the cause of the plaintiff’s distress;  and

  4. that the emotional distress sustained by the plaintiff was severe and of a nature that no reasonable man could be expected to endure it.

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postIn August of 2008, Steven Gavin died due to a bacterial infection that was allegedly caused by the improper reinsertion of a feeding tube.  Additionally there were allegations of improper monitoring by physicians, nurses, and staff at Tewksbury State Hospital.  Two years after his death, in July of 2010, an attorney representing the estate of Steven Gavin sent a presentment letter to the chief executive officer of the hospital and the Attorney General of Massachusetts alleging that the negligence of the hospital and the staff amounted to a wrongful death.  At the time of the letter, no estate proceedings at commenced in the Probate and Family Court.

The Commonwealth of Massachusetts moved to dismiss the case claiming that the Plaintiff’s presentment letter was deficient because it was not sent by an executor/administrator/personal representative of the Estate that had been properly appointed by the court.  The lower court agreed and reasoned that the Plaintiff’s presentment was in fact deficient because at the time the letter was sent, the Plaintiff was not a “claimant” or an executor or administrator with the capacity to commence suit or settle a wrongful death claim.  Plaintiff’s claim was dismissed.

Under Massachusetts General Law Chapter 258 § 4:

A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing and sent by certified or registered mail, or as otherwise provided by this section.

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wet floorIn a decision issued on May 12, 2014, the Massachusetts Appeals Court held that a man injured as a result of a slip and fall at Walgreens could not recover for the injuries he sustained.  The Plaintiff, Alejandro Curet, went to the Defendant Walgreens in Roxbury in order to pick up a medication.  While he was walking through the store with the aid of crutches, he went down the aisle containing hand lotions and creams.  While he was halfway through the aisle, he slipped and fell on a substance he alleged was lotion.  The Plaintiff brought suit against the Defendant claiming negligence in allowing a substance to be on the floor for an unreasonable amount of time.  The existence of a substance on the floor, according to the Plaintiff, constituted an unreasonable defect that caused or significantly contributed to his injuries.

While there was no evidence that there was cream or lotion on the floor at the time of the Plaintiff’s fall, the court noted that the Plaintiff could not point to any evidence that the Defendant organization knew the cream was there, had reason to know it would be there, or even a reasonable opportunity to discover its presence.  In response, the Plaintiff relied on the theory “mode of operation.”  Prior to 2007, when it came to the liability of a store owner for a slip and fall, liability would attach only where the owner had actual or constructive notice of the dangerous condition.  With the landmark decision of Sheehan v. Roche Bros. Supermarkets, Inc., the Supreme Judicial Court of Massachusetts held that a Plaintiff’s burden to prove notice of a dangerous condition could be satisfied if they are able to establish that the injury was attributable to a reasonably foreseeable dangerous condition that is related to the owner’s mode of operation. Continue reading →

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field-trip-205687-mMichelle Wilkins was approaching a public school in Haverhill in February of 2011 to attend her child’s parent-teacher conference. As she was making her way to the school she slipped and severely injured herself on ice that had accumulated on a walkway of the school. After treating for her injuries and seeking medical intervention, she brought suit against the city of Haverhill alleging negligence in the city’s failure to properly maintain the walkways to be free of ice and accumulating snow.  She argued that this accumulation constituted a defect in the property. Additionally, as a result of the alleged negligence by the city of Haverhill for allowing such a defect to exist on its property, she was caused to sustain numerous injuries. The city of Haverhill responded to the allegations by seeking to dismiss the case. In a somewhat surprising defense, the city of Haverhill cited M.G.L. c. 21, § 17C, the Recreational Use Statute.

As previously mentioned on this site, under the Recreational Use Statute in Massachusetts, a city or private party who permits the public to use his or her land for recreational purposes without fee, will be relieved of liability for injuries allegedly sustained as a result of defects in the property. The trial court judge allowed the City’s motion to dismiss the case, and the injured Plaintiff appealed. On appeal, the city argued that the Plaintiff’s claim should be barred under the statute because she is a member of the public and her attendance at the parent-teacher meeting qualified as an educational purpose within the meaning of the statute. Continue reading →

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movie-house-771223-mAlthough property owners are not responsible for preventing every instance of violence, they must take reasonable steps to secure the premises in appropriate circumstances.  A negligent (or inadequate) security claim arises when a person is injured due to the poor or unreasonable safety precautions established by the premises owner.  In a case recently decided by the Appellate Court of Massachusetts, the Court held that a woman who alleged she was raped in the bathroom of Regal Cinemas in Bellingham could not have a new trial after judgment was entered for the Defendant cinema.  The Plaintiff claimed that Regal Cinemas should be held liable under the theory of negligent supervision, specifically, that the Defendant organization had policies or procedures in place that exacerbated or made it possible for such an egregious act to occur on its property.

The failure of a homeowner, business owner, or premises owner to prevent a crime does not establish the owner’s liability in a negligent security case.  Instead, the court will determine whether the underlying crime was foreseeable to the owner.  When a crime is reasonably foreseeable to occur on the premises of another there may be a duty to protect, and thus, negligence may attach.  The court has held that when it comes to security of premises, a landowner is not an insurer of land.  However, the court has articulated that liability may be warranted in certain circumstances which hinge on the foreseeability of the underlying acts: Continue reading →

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cancerA Worcester jury recently returned a verdict for $1.95 million dollars against two doctors practicing out of Saint Vincent Hospital in Worcester.  The allegations were as follows: in 2003 the Plaintiff went for a lung biopsy at Saint Vincent Hospital.  The lung biopsy resulted in a determination that the Plaintiff had cancer.  The Plaintiff was concurrently being treated for an immunodeficiency condition, but this information was not relayed from the oncologist to the hematopathologist who ultimately diagnosed the cancer.  After detailing to the Plaintiff-patient that he had Stage III cancer, he was advised to undergo chemotherapy and a bone marrow transplant.

The patient received multiple cycles of chemotherapy and ultimately received a bone marrow transplant.  After weeks of this grueling treatment it was discovered that the patient did not have cancer.  His underlying immunodeficiency condition mimicked cancer in the lung.  Had the appropriate health care providers communicated and exercised due diligence in the care and treatment of the Plaintiff, his treatment would have been reduced from chemotherapy to a manageable monthly medication.  Instead he went through the strenuous process of chemotherapy and an unnecessary bone marrow transplant.  The transplant included various complications that ultimately caused the Plaintiff to succumb to a graft versus host disease which resulted in his death.

In awarding the Plaintiff’s estate $1.95 million dollars, the claims were predicated on a medical malpractice cause of action known as lack of informed consent.  Under the theory of lack of informed consent, a patient must consent to treatment even in a life threatening situation.   In order to recover in an informed consent action, the Plaintiff must prove the duty of the physician to disclose the information to the patient. This is further broken down into four components: Continue reading →

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penWhen the circus rolls into town there are sights and sounds that captivate the audience.  Many gasps and sighs form a chorus in the crowd in response to the planned acrobat stunts from the seasoned gymnasts and adventurers employed by the circus.  The light and ethereal mood can become dark and somber when the gasps and sighs correspond to unplanned events- like accidents.  Such was the case this past weekend in Providence when eight circus acrobats were hurt during a performance when a rig collapsed with the performers in midair.

Eight female acrobats were hanging by their hair forming a human chandelier when an apparatus fell and plummeted to the ground. The eight performers were brought to the hospital to treat their injuries.  As of the date of this writing, three of the performers are currently labeled as being in critical condition.  While no audience members were injured in the tragic accident, the question arises as to what happens when a patron or audience member signs a “waiver” or a release of liability prior to being in the audience or participating in a dangerous activity. Continue reading →

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1334532_48594781As the shades go up and windows open to begin the annual task of spring cleaning, many individuals face only the trouble of allergies and dust mites as a hindrance to this accomplishment.  This was not the case for Geraldine Moran.  As she began her annual spring cleaning routine in 2005, she used a six foot tall ladder to accomplish her mission.  As she was cleaning, Ms. Moran fell and broke several ribs.  She was immediately taken to, what was previously known as, Jordan Hospital in Plymouth, Massachusetts.  Doctors evaluated Ms. Moran and made the decision to transport her to Massachusetts General Hospital as that facility would seemingly have the appropriate staff, equipment, and facilities to help treat Ms. Moran.

Geraldine Moran subsequently presented to Massachusetts General Hospital for her injuries.  While at the hospital, the doctors evaluated Ms. Moran and determined that she cracked her ribs in an unusual manner.  One rib in particular was noted as being cracked in such a way that it’s fine tip was close to Ms. Moran’s aorta.  The aorta is the largest artery in the body which stems from the left ventricle of the heart.  This is vital to the human body as it distributes oxygenated blood to all parts of the body.  Hospital staff did not treat Ms. Moran immediately.  Instead, she was kept overnight for evaluation and was given an epidural for pain. It was also noted that the time of her stay at MGH, she had a persistent cough.  At some point at night or in the early morning hours, the cracked rib with a razor point edge punctured the balloon like aorta during a coughing fit.  Ms. Moran went into cardiac arrest in the early morning hours.  She was pronounced dead at 9:49 am.  An autopsy revealed a 1 centimeter hole in her aorta by the jagged edge of her broken rib.  She was 62 at the time of her death and left three children behind. Continue reading →

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angry dogIn February of 2007, Mr. Irwin walked his small dog, Peppermint, in his front yard.  Mr. Irwin had previously been disabled by stroke and was able to walk only with the assistance of a cane.  While Peppermint was doing his daily routine- an unleashed German Shepherd approached the area and came toward Peppermint in his yard.  The German Shepherd took Peppermint by the neck and shook him uncontrollably.  Mr. Irwin was unable to intervene as he was knocked down in the ensuing chaos.  As the owner of the German Shepherd separated the fight, Peppermint ran into the house and was brought to an Emergency Veterinary Center.  The small dog was labeled as being in “critical condition” due to the internal injuries he sustained as well as the bruising and dog bites over his body.  Emergency surgery was performed that totaled approximately $8,608.05 for treatment.

Mr. Irwin, the Plaintiff, brought suit against the Defendant to recovery veterinary costs that totaled over $8,000.00.  The lower court Judge found that these expenses were reasonable and necessary.  Defendant appealed claiming that the damages should be “capped” at the market value of the dog, regardless if the expenses for veterinary care exceeded that amount.

The Plaintiff brought suit under M.G.L. Chapter 140 § 155, which reads, in part: Continue reading →

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