INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

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Early in the morning of August 1, 2016, two people were tragically killed and several others were injured when a Hampton Inn shuttle bus was involved in a rear end crash while transporting passengers from Logan Airport.  A Subaru Legacy rear ended the bus as it was exiting the airport and merging onto Route 1A North.  The accident and the force of the collision resulted in two of the passengers being ejected from the bus and suffering fatal injuries.

The Massachusetts State Police has not yet revealed whether or not the deceased and injured passengers were belted in the bus at the time of the accident or how it was that the passengers were ejected from the vehicle.  The details of this accident, however, illustrate the dangers posed by shuttle buses, buses and passenger vans, which all too often are not designed with the same safety features found in every day vehicles.  From windows that break upon impact allowing for the ejection of passengers to higher propensity for rollovers to safety belts that do not incorporate shoulder harnesses or impact-absorbing headrests, these vehicles are generally more dangerous and uncrashworthy even though they are used to transport tens of millions of people on U.S. roads every day.  Most people who board a shuttle bus, such as a hotel courtesy shuttle, do not even stop to think why it is that the buses do not have safety belts or shoulder harnesses.  Such vehicles should be held to the same safety standards as all other cars on the road, or arguably even higher standards considering the number of people that rely on them for transportation.

One only needs to do a quick online search to see how often accidents such as the one in Boston turn fatal or leave occupants with catastrophic injuries.  Unfortunately, these car accidents will continue to produce tragic results unless safety improvements to these vehicles are implemented.

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Medtronic, one of the world’s most prominent manufacturers of medical devices, has been named in a whistleblower lawsuit alleging that it regularly promoted its spinal implants for use in the neck despite the fact that the devices were not approved for such use by the FDA and specifically were labeled as being inappropriate for the cervical spine. The specific implant was the Medtronic VERTE-STACK, which is “intended for vertebral body replacement to aid in the surgical correction and stabilization of the spine” and is part of Medtronic’s INFUSE Bone Graft system.  The whistleblower suit alleges that Medtronic defrauded government healthcare entities by charging for the implantation of the spinal implant devices when the company knew that the use was illegal or unsafe.  The company is already facing thousands of potential personal injury lawsuits related to the INFUSE products.

This lawsuit is just one example of what seems to be a common practice for medical device and pharmaceutical drug manufacturers – promoting “off-label” use of its products to physicians despite federal prohibitions against such practices and despite the risk for patient safety.  Such practices, while making millions for medical device manufacturers, pose significant and sometimes deadly risks to patients who are implanted with the devices.

The personal injury attorneys at SUGARMAN have litigated complex medical device and defective product cases for decades.  If you believe you may have a claim involving a defective medical device, please fill out a Contact Form, call us at (617) 542-1000 or e-mail info@sugarman.com.

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The newest app craze sweeping the country is Pokemon Go, a smartphone game created by Niantic and the Pokemon Company and released over the summer.  The app uses smart phone cameras and GPS tracking, which when integrated with the app, allows you to see and “capture” the Pokemon characters in “real time” as you walk (or drive) nearly anywhere.  While hailed by many as a great way to get children, teenagers and adults alike out of the house and on their feet, the hordes of people walking through city streets, parks, buildings and busy intersections focusing on the screen instead of their surroundings are causing accidents and injuries all over the world.

To date, there are increasing reports of hospitalizations caused by the inattention of people while “catching Pokemon.”  People have tripped over things, walked into poles and trees, fallen into holes and ditches (and two men in California off of a cliff), and they have walked directly into traffic – all as a result of this game, which seems to have a “zombie-like” effect on many.

While the concern for self-injury is high, however, this new obsession also poses significant risks to the non-playing public.  Since the app works anywhere, there have been reported vehicle collisions caused by drivers suspected of Pokemon chasing while driving.  Since the proliferation of the smartphone, texting and emailing while behind the wheel has caused thousands of accidents, many fatal, and this presents yet another challenge to safe drivers on the road, as well as pedestrians, bicyclists, Pedicabs and all of the other individuals sharing the crowded city streets.  While the clear message is not to drive and play Pokemon, many people who fail to heed the advice can cause serious accidents.  Similarly, people walking distractedly into traffic have caused vehicles to collide in avoidance of the unaware pedestrian.  Injuries have also been reported as a result of pedestrians walking into other pedestrians, resulting in injuries.

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Summer is here, which means it’s time to fire up the grill and relax with friends and family by the fire pit. While barbecues and bonfires are a big part of summer, it’s important to be cautious and well aware of the dangers that the use of propane and other flammable materials present.  Accidents can be avoided, in part, by taking the following precautions:

Grill Safety

According to The National Fire Protection Association (NFPA), every year emergency rooms treat approximately 17,000 people who suffer from grill-related accidents.  The NFPA also reports that 10 deaths and 8,800 house fires are also caused by improper use of grills in the United States.  Charcoal and propane/gas are the two predominant types of grills in the U.S. and both pose their own safety risks.  When using a propane or natural gas grill, the most common threat is a gas leak that is allowed to ignite.  Before you even think about turning on your grill, check your tank, hoses and all connection points to be sure the hoses are in excellent condition and there is tight point of contact between the gas and the tank.  Signs of a leak include the smell of propane and the hissing noise of gas escaping.  If you encounter either of these problems, do not light your grill or any other flammable near the area until a professional checks it out.

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April vacation is here and whether your week involves fun in the sun at a tropical destination, an exciting road trip, or just day excursions to a local park or attractions, it is important to think about keeping your family safe before you hit the road.  Here are key points to keep in mind.

On The Road Safety

Road trips are a popular vacation choice for families during school break. They can be extremely memorable experiences, but there are risks to consider when driving long distances in unfamiliar territory. Before you leave, be sure to do a maintenance check on your vehicle. Experiencing car trouble on the highway or in a new place can be dangerous to you, your family and those sharing the road. If you have items that need to be strapped down, or physically hang from the vehicle, make sure they are fully secured. If debris falls from your vehicle causing an accident and injuries, you can be held liable for the damages. Leave the phone off or let your passengers handle the phone. Not only is texting or talking on the phone a serious road hazard, it is illegal in most states in the U.S.

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Spring has finally arrived, and it’s time for one of America’s favorite pastimes to start back up after a long winter. Recent injuries and accidents have forced MLB to take further action to protect fans at the games. Over the last few years, there have been several alarming stories of fans seriously injured by foul balls, broken bats or falling over railings and protective barriers. According to a recent study by Bloomberg, there were an estimated 1,756 injuries sustained at major league ball parks in 2013 alone.

While most fans acknowledge that they are taking a risk attending sporting events, the question is are major league teams doing enough to protect their fans? MLB isn’t responsible for injuries sustained beyond the “Baseball Rule”, or screening the most dangerous areas (behind home plate), and it is up to the individual team to provide a safe environment for fans at their home stadium. However, as of late 2015, MLB has urged teams to extend the safety net behind home plate to both dugouts for fans in lower level seats; and most teams, including the Red Sox, were quick to agree to this added precaution. Despite the added measures MLB is making to keep fans safe, the onus still falls on the fans to stay alert and safe during the games. Here are some important tips to consider when going to a baseball game.

Always Stay Alert

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Over the past several years, there have been disturbing reports of exposure to blood-borne diseases such as HIV, and Hepatitis B and C after undergoing colonoscopies. The most recent of these cases was reported earlier this month at Baystate Noble Hospital in Westfield, Massachusetts, where 293 patients who underwent colonoscopies between June 2012 and April 2013 may have been exposed to these diseases. This exposure was due to improper sterilization of colonoscopy equipment, which had been purchased in 2012 and required a different sterilization process.

While colonoscopies are usually considered routine medical procedures, ease your mind about potential risks by asking your physician:

1. Does your facility have staff devoted to the reprocessing and disinfection of colonoscopy equipment?

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While a true New England winter has not yet set in, there are plenty of hazards to navigate on the roads, including drivers distracted by cell phones and other handheld devices. The sight of a vehicle drifting into another lane because the driver is texting, emailing, GPS-ing or reading on a cell phone has become an all-too-common sight. Drivers need to be vigilant in order to avoid collisions with distracted drivers, which cause tens of thousands of collisions each year, many of which result in death.

In 2010, the Massachusetts Legislature passed a law making it illegal to “use a mobile telephone, or any handheld device capable of accessing the internet, to manually compose, send or read an electronic message while operating a motor vehicle.” A violation of this law is punishable by a fine of $100 for the first offense, $250 for a second offense and $500 for the third or subsequent offense, but under no circumstances would the penalty be a surchargeable offense. M.G.L. ch. 90, § 13B. However, despite people breaking the law on a daily basis, it turned out to be hard to prove that the driver was actually sending or reading messages while driving without subpoenaing phone records, something not generally done to prove a simple traffic violation, without a serious injury or fatality.

A new proposed law, entitled “An Act to Prohibit the Use of Mobile Telephones While Operating a Motor Vehicle,” Bill S.2093, if passed by the legislature, will ban the use of all handheld mobile devices while driving, except to “activate, deactivate or initiate a feature or function.” Moreover, someone who is seen by police driving with a phone near his or her ear or head, is presumed to be in violation of the law, placing the burden of proof on the individual to prove he or she was not violating the law, or that it was for emergency purposes. Fines for violating the new law will remain at $100 for the first offense, $250 for a second offense and $500 for the third or subsequent offense; however, the third or subsequent offense will be considered a moving violation and could affect your insurance premiums.

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During the early morning hours of Thanksgiving, a 29 year-old MBTA employee named Jephthe Chery was shot and killed outside of Who’s On First, a well-known bar located on Yawkey Way right across from Fenway Park. Mr. Chery, who was an innocent bystander, was one of four men shot that morning after a private party at the bar turned violent. Following the shootings, the Boston Police Department cited Who’s On First for creating “an unsafe environment”, although full details of what happened inside the bar that night have not been released. This incident follows a September 2015 attack in which two woman were shot while leaving the same bar. In addition to these two shootings, the Boston Police have alluded to an ongoing problem with violence and assaults at the bar.  As more details of the tragic circumstances leading to Mr. Chery’s death emerge, light hopefully will be shed on what employees of the bar knew regarding the events that led to the shootings.

This blog has already addressed the common sense rationale for holding taverns and bars liable for patrons who are over served, drive drunk and then injure or kill people. A bar or tavern such as Who’s On First, however, can also be held liable for assaults, crimes and other reasonably foreseeable violent acts committed by patrons outside the property, whether or not the acts are directly linked to the service of alcohol. The Massachusetts Supreme Judicial Court addressed this issue in Christopher v. Father’s Huddle Café, Inc., a case that was briefed and argued by SUGARMAN principles Marianne LeBlanc and Benjamin Zimmermann. The case resulted from the death of a young man who was killed during a fight that had started in a Boston tavern before moving out onto the street.  Employees of the bar were aware of escalating tensions between two groups of people in the bar and knew that one group followed the other group outside in order to initiate a fight, but the employees took no steps to intervene or call the police. Tragically, a young man was struck by a car while trying to flee from his assailants during the ensuing altercation. Attorney LeBlanc tried the case to conclusion and obtained a $28,000,000.00 jury verdict for the young man’s family, including a finding of gross negligence and an award of punitive damages against the bar owner. On appeal, the Supreme Judicial Court upheld the verdict that Attorney LeBlanc obtained against the bar. In doing so, it ruled that “the duty to protect patrons extends to all reasonably foreseeable harm including, in some circumstances, harm that occurs at a distance from the premises.” This principle has been applied to other cases involving violence and assaults that occur outside of taverns and bars.

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As most people have heard by now, Volkswagen (“VW”) is currently embroiled in a scandal after the EPA discovered that VW had programmed supposed “clean” diesel vehicles to cheat emissions tests. These cars, which included certain Audi, Porsche and VW models, were emitting nearly 40 times the amount of the pollutant nitrogen oxide, well above maximum federal emission levels, when driven in real world conditions than what the cars had been designed to emit under laboratory testing conditions. VW has now admitted to some of the most brazen corporate malfeasance ever uncovered and has announced plans to issue a recall beginning in 2016 that will fix the emission of some 500,000 vehicles sold in the United States. The details of VW’s elaborate deception can be found here. Since the scandal broke, VW’s CEO has resigned and the company’s stock price and reputation have collapsed.

What if you bought one of these “clean” cars? Although the proper thing for VW to do would be to buy back these vehicles, it is not anticipated that the federal government will force VW to do so, even though the company sold the cars in a defective condition and actively concealed this defect from its customers. Once the recall program begins, customers can choose to participate in the recall, but it is likely that the “fix” in the recall will result in decreased fuel economy, performance and, perhaps, dependability. There will also likely be a drastic decrease in the value of your car even if you participate in the recall program. What if anything can be done about that?

Customers who purchased vehicles subject to the recall can bring claims against VW for the diminution in value of the car, i.e., what was the loss of resale value of the car that has been caused by this recall and corporate malfeasance. Consumers in Massachusetts may have an additional protection in that their claims against VW can be brought pursuant to M.G.L. ch. 93A, the consumer protection statute. The statute makes it unlawful for a company such as VW to engage in “unfair or deceptive acts or practices in the conduct of any trade or commerce” and exposes a company found to violate the statute to double or treble damages plus attorneys’ fees. Based on what has been discovered to date, VW’s actions can generously be described as “unfair or deceptive” and Massachusetts consumers may be able to recover more under 93A than what consumers in other states can depending on how the recall unfolds and what the damage to consumers turns out to be.

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