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.

Articles Posted in Wrongful Death

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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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Unfortunately, injuries in hospitals are all too common. One class of such injuries has been labeled as “never events”, a term used to describe medical errors that should never happen under any circumstances. The Massachusetts Department of Public Health (“DPH”) calls these types of injuries “serious reportable events” (“SRE”) and there are regulations that outline what events constitute a SRE (for example, surgery on the wrong leg) and what a hospital is required to do should SRE occur during the course of a patient’s care. The regulations require hospitals, within seven (7) days, to report SRE causing serious injury (or death) to the patient (or his or her family), the patient’s health insurer (including Medicaid or Medicare) and the DPH’s Bureau of Health Care Safety and Quality. An updated report to all is required within 30 days and must include an analysis of the cause of the event and whether the event was preventable.

In 2013, Massachusetts acute care hospitals reported 753 of these events and non-acute care hospitals reported 206 events. Hospitals are not permitted to charge either the patient or health insurer for SRE or treatment required for the resulting injuries.

DPH has put out a lengthy, detailed list of SRE. They generally fall within several categories:

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The recent death of a man in a New Bedford seafood plant presents a sad reminder of the dangers faced by industrial workers. According to the most recent publication from the Bureau of Labor Statistics, in 2011 alone there were 4,693 fatal work injuries in the U.S.

When a worker is seriously injured or killed on the job, OSHA investigates, as was apparently done in this case. By definition, OSHA’s investigation focuses on the employer, and whether the employer could have or should have done something more to prevent the injury. OSHA investigations are nearly always critical of the employer in some respects, because it is OSHA’s job to critique employers on safety practices.

What OSHA rarely focuses on are other causes of accidents beyond the employer’s control. For example, improperly designed machines are common causes of workplace injuries and deaths. Often, the adequacy of a machine’s guards and warnings is either not addressed by OSHA, or unfairly blamed on the employer who is not in the business of machine design.

Why can this be important to the injured worker or his family? Because by law, with rare exceptions, an employee may not bring a claim for negligence or personal injuries against his employer. No matter what fault OSHA finds lies with the employer, all the employee is entitled to is worker’s compensation benefits, which are often modest compared to the real damage done to the worker and his family.

If, however, a worker is injured because of a defective machine, the worker may very well have a separate claim against the machine manufacturer. In such a claim, the worker can collect the full amount of his damages beyond worker’s compensation benefits.

For this reason, in order to preserve their rights, workers and their families should make sure that there is an investigation of all causes of an accident–including any machinery involved–and not just rely on the investigation conducted by OSHA.
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With the first major blizzard of the year apparently upon us, Massachusetts TV and radio airwaves are full of tips to prevent personal injury and other calamity. Cars have been “banned” from the roads and we are told to stay inside. But what are our actual legal duties in Massachusetts to prevent personal injuries and property damage?

Like almost every aspect of Massachusetts personal injury law, we all owe each other a duty of reasonable care to prevent foreseeable harm and injuries to others. In snow events like this, that duty is not changed. In fact, the duty we owe is likely heightened. To take the easiest example–and one we all intuitively know–drivers always owe a duty to drive with reasonable care, but in a snow event more care is required because the risk of harm is higher. Driving during a “ban” from the Governor’s office, while perhaps not automatically negligent, would certainly be strong evidence of a breach of duty, particularly if you were aware of the ban.

There is also a duty of property owners and their contractors to exercise reasonable care to remove snow and ice under Massachusetts law. For a long time, Massachusetts law was that a person owed no duty to remove snow and ice from their property so long as it had fallen to the ground naturally and remained in a “natural” condition. A person injured from a fall on such “natural” snow or ice could not bring a claim for personal injuries even if the natural snow and ice was in the middle of an entrance to a busy store.

In 2010, however, Massachusetts’ highest court found that this law made no sense, and held the duty of care included taking reasonable steps to timely remove snow and ice from one’s property, even if it had fallen and remained in a natural condition. The reason given by the Court was straightforward: “It is not reasonable for a property owner to leave snow or ice on a walkway where it is reasonable to expect that a hardy New England visitor would choose to risk crossing the snow or ice rather than turn back or attempt an equally or more perilous walk around it.”

While we may make light of it, and while shoveling is not a popular activity, the duty to remove snow and ice from property (and from the top of vehicles) is actually a serious one. In SUGARMAN’s personal injury practice, we have seen falls on snow and ice cause severe personal injuries, including major fractures, head injuries, and quadriplegia. Injuries from vehicles driven negligently in the snow, as well as flying snow and ice from the top of trucks and cars has also caused catastrophic personal injuries and even death. So, while we are all well-advised to stay inside and out of harm’s way, that inevitable trek to the garage for the shovel must be done in a reasonable amount of time, and the removal must be done with reasonable care.
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Since our recent blog regarding the meningitis outbreak alleged to be caused by contaminated steroids made and distributed by New England Compounding Center, the company issued a voluntary recall of its products made at and distributed from its Framingham, MA, facility.  The U.S. Food and Drug Administration (FDA) has been quite active on this issue in the past month, issuing several advisements to patients, healthcare providers and New England Compounding Center’s customers.  In addition to the contaminated steroids, the FDA is also investigating whether or not two other New England Compounding Center products may be involved in the outbreak. 

Reports warning of a substantial number of potential infections have, unfortunately, proven to be correct. After dozens of infections were initially discovered, the number of cases has skyrocketed. At present, the Centers for Disease Control reports over 363 illnesses and 28 deaths linked to the injectable steroids, which are administered for back pain. It is reasonable to assume that these numbers will continue to rise in the coming weeks as more infections are discovered.

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In the past few days, it has been reported that dozens of people have been infected with a rare form of meningitis from contaminated steroids made and distributed by a pharmacy in Framingham, Massachusetts. Those same reports indicate that, unfortunately, we can expect to see more victims.

Federal investigators have found that the steroids at issue contained a “fungal contaminant.” While the steroids have been recalled by the company, and the recall appears to be growing, the drugs were apparently distributed to dozens of facilities in over 20 states. The contaminated steroids appear to be particularly dangerous because they are injected into the lower back, which may serve as a conduit for meningitis, an infection of the membrane that surrounds the brain and spinal cord. The disease can result in serious illness, long-lasting injuries, and death. Five deaths have already been linked to the contaminated steroids, with many more infected.

Victims of contaminated drug products like these steroids have numerous possible avenues of legal recourse, including claims for negligence and products liability. The two kinds of claims are similar, but have important differences. A negligence claim requires a showing that the maker and/or distributor of the drug was careless in some fashion, thereby allowing a contaminated product to hit the market.

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With disturbing frequency, we see reports of violent crimes at hotels, bars, and other public places resulting in grave personal injuries and deaths.  If the victims of these violent crimes are lucky, the perpetrators will be caught and brought to justice in criminal proceedings.  But the injured and survivors of the victims live on to suffer permanently.

Of course, punishment of the criminal (if caught) may offer some sense of retribution, but it does nothing to compensate the victims for their loss.  And a personal injury lawsuit against a criminal, except in rare circumstances, is often symbolic as there are no assets to pursue.

Criminals, as we know, will be criminals.  That being said, who has the duty to protect these victims of violent crimes in the first place?  Massachusetts law is clear that businesses such as hotels and inns have a special duty and responsibility to protect against unreasonable risk of harm to their guests and others, including negligent, intentional, and even criminal acts of third persons.  

Thus, it has been found that a hotel could be held responsible for the murder of a guest in her room, even though the murderer was never found, because the hotel lacked adequate security to deter and protect her.  Fund v. Hotel Lenox of Boston, 418 Mass. 191 (1994).  http://masscases.com/cases/sjc/418/418mass191.html  And people injured in a fire set by an arsonist at an inn were allowed to receive compensation from the inn, which lacked adequate security or egresses to protect them.  Addis v. Steele, 38 Mass. App. Ct. 433 (1995).  http://masscases.com/cases/app/38/38massappct433.html
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When personal injury lawsuits are discussed, whether in casual conversation or in media coverage of jury verdicts, the subject of punitive damages inevitably surfaces.  Whatever feelings people may have for or against punitive damages, the facts and the legal theory behind them are often poorly understood.  This blog will attempt to give an overview of punitive damages in personal injury cases in Massachusetts.

First, what are punitive damages?  A person who has suffered personal injuries or death at the hands of someone else’s negligence is entitled to what are known as compensatory damages.  These are damages that are expressly designed to compensate a person for things like lost wages, medical expenses, and pain and suffering.  They are not designed to punish the negligent party; they are literally meant to compensate, or pay the injured party back, for their losses. 

Punitive damages, also known as exemplary damages,  are designed to punish a person or corporation for wrongful conduct that has harmed someone, and to deter similar conduct in the future.  The theory behind punitive damages is that, in some instances, simply repaying a person for what they have lost is not enough.  The law says what we all intuitively understand in our day to day lives: that there is a level of misconduct which, if proven, warrants both punishment and deterrence of similar conduct in the future.   

What many people may not know is that punitive damages are simply not available in most personal injury cases in Massachusetts.  This dates back to very old Massachusetts law that did not provide for punitive damages, no matter how negligent the conduct and no matter how bad the injuries.  That law remains in effect today.  Even the drunk driver of a dynamite truck who runs a red light and hits a pedestrian in a crosswalk rendering them quadriplegic is not subject to punitive damages in Massachusetts. 
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I was recently asked to give a lecture at a national conference for trial lawyers regarding damages for surviving spouses in wrongful death cases. Many states limit recovery in such cases to economic damages only (i.e., medical expenses, lost wages, etc.). Fortunately, Massachusetts is a state with a statute of limitations governing the recovery to the estate and next of kin for the loss of a family member due to another’s negligence, and which provides for damages to the surviving next of kin for the value of the loss suffered.

No amount of money could ever be said to equal the value of any person. However, a jury which finds a defendant(s) liable in a wrongful death case in Massachusetts will be asked to render a monetary award to the next of kin for “the fair monetary value of the decedent to the persons entitled to receive the damages recovered… including, but not limited to, compensation for the loss of reasonably expected “net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of the decedent.” Mass. Gen. L. c. 229, §2.

In a case involving the death of a spouse, we as attorneys must first get to know our client and, by extension, his/her deceased spouse. The wrongful death trial is very much about the life of the decedent. In trying the case, we want the jury to know who that person was, and why his or her death amounts to such a profound loss for the plaintiff. Because we are often not contacted about a case until after the death has occurred, the process of bringing the decedent to life in our own mind can be a lengthy one, requiring extensive communication and probing of the client and other family members and friends.
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When a victim brings a lawsuit for personal injuries or the death of a family member, the claim is for monetary compensation. If the lawsuit is successful at trial, the jury or judge awards a lump sum as damages and the legal system enters a judgment against the at-fault party for payment of the amount awarded all at one time. For this reason, when personal injury or wrongful death claims are settled out-of-court or before trial, they are traditionally settled for a lump sum payment. In the 1970s and 1980s, insurers began proposing (and claimants began accepting in some cases) that personal injury and wrongful death claims be settled through periodic annuity payments to the victim rather than a lump sum payment. This method of settling a claim, using a specific type of annuity, was termed a ‘structured settlement.’

An understanding of the tax treatment of personal injury and wrongful death settlements is essential to understanding the mechanism of structured settlements. The United States Code Title 26 § 104, “Compensation for injuries or sickness”, provides: “…Except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include…(2) the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness…” (US Code, Cornell University Law School; http://www.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00000104—-000-.html)
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