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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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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After the filing of multiple lawsuits as a result of birth defects in children of mothers who were prescribed Zofran (generically known as Ondanestron) to treat nausea and vomiting during pregnancy, a federal judicial panel created a consolidated docket for all Zofran cases in Massachusetts. The October 13, 2015 order from the Judicial Panel of Multidistrict Litigation will transfer 12 cases and all future Zofran cases to the Massachusetts Federal District Court to be heard by Judge Dennis Saylor. For more information on Multi-District Litigation, see our former blog post.

Zofran, manufactured by GlaxoSmithKline, LLC, is an anti-nausea drug that was approved by the Food and Drug Administration (FDA) in the early 90s to treat nausea and vomiting symptoms in patients undergoing chemotherapy or surgery. More recently, the drug has been extensively prescribed off label to treat nausea and vomiting during pregnancy, allegedly causing birth defects, such as cleft lip, cleft palate, club foot, and heart defects, resulting in the numerous product liability lawsuits.

Nausea and vomiting in pregnancy is the most common symptom associated with pregnant patients, with more than 80% of pregnant women experiencing these symptoms at some point during their pregnancy. According to a recent article published by the American Journal of Obstetrics and Gynecology (AJOG), 97.7% of prescriptions for the treatment of nausea and vomiting in pregnancy in the United States are with medications not labeled for use in pregnancy, not indicated for nausea and vomiting in pregnancy, and not classified as safe in pregnancy by the FDA. In recent years, the use of Zofran for the treatment of nausea and vomiting in pregnancy has steadily increased, and today approximately 1 in 4 pregnant American women are exposed to Ondanestron.

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Halloween is a favorite holiday for the young and young-at-heart, whether it be trick-or-treating or dressing up for a Halloween party. Regardless of your age, following the safety tips put out by the Centers for Disease Control and Prevention and the Consumer Product Safety Commission will help to keep you and your family safer this fall season.

Halloween Costumes: Choose a flame retardant fabric. When shopping for a costume, look for the label “Flame Resistant.” This label indicates that the items will resist burning and should extinguish quickly once it is removed from the ignition source.

Halloween Makeup: Always test Halloween make-up in small area first, especially on children. Remove it before bedtime to prevent possible skin and eye irritation.

Trick-or-Treating Pedestrian Safety: Purchase costumes that are light and bright enough to be clearly visible to motorists. You can also use reflective tape and carry flashlights to be seen more easily. Halloween is the perfect opportunity to teach children to practice using the crosswalk, obeying traffic signals, and looking both ways before crossing the street.

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An agreement has been reached in the case involving two Massachusetts parents who sued their son’s private school on the grounds that the school’s Wi-Fi was causing their son to become ill. On August 12, 2015, the parents filed a lawsuit against their son’s private school–the Fay School in Southborough, Massachusetts–alleging that the strength of the school’s Wi-Fi signal is causing their son to suffer an electromagnetic hypersensitive allergic reaction. The lawsuit, which was filed in the U.S. District Court, District of Massachusetts, sought $250,000 in damages as well as an injunction that would require the Fay School to hardwire its Internet connection, decrease the strength of the Wi-Fi signal, or make other accommodations for the student. On August 25, 2015, the parties filed a request that the preliminary injunction hearing, originally scheduled for September 4, 2015, be extended until September 25, 2015 in order to work out the specific terms of the undisclosed agreement.

In their complaint, the unnamed plaintiffs (referred to as “Mother” and “Father” in the complaint) contended that beginning in the spring of 2013, their son (referred to as “G” in the complaint) began experiencing headaches, itchiness, and a rash, only while he was present at school. These symptoms allegedly worsened in 2014 when the boy began to suffer bloody noses, dizziness, nausea, and heart palpitations. The 12-year-old boy has since been diagnosed with Electromagnetic Hypersensitivity Syndrome (EHS), which is a condition exacerbated by electromagnetic radiation. While the symptoms associated with EHS are acknowledged in the medical community, there is an ongoing debate about whether EHS is a bona fide medical condition.

The unnamed plaintiffs alleged that their son’s symptoms began when the Fay School installed an updated, more powerful Wi-Fi system in 2013. The parents claim that the signals emitted by the school’s Wi-Fi are stronger than those found in a typical household. In response to the parents’ concerns, the Fay School hired a company to measure and evaluate the strength of the electromagnetic signals on campus. The company found that the radio signal strength on campus was far below the permissible levels promulgated by the Federal Communications Commission. While the nature and extent of the company’s testing and findings remains largely undisclosed, there is a likelihood that it will directly influence the final terms reached in the agreement among the parties.

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On May 15, 2015, the Massachusetts Appeals Court announced a decision clarifying an important aspect of premises liability law in the Commonwealth and serves as a victory for plaintiffs in cases involving falls at commercial establishments.

In 2007, the Commonwealth’s highest court adopted the “mode of operation” approach to premises liability cases, making it easier for plaintiffs to prove a storeowner’s negligence. See Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007). In Sheehan, the plaintiff was injured after slipping and falling on grape that fell from a self-service display and to the ground. The plaintiff brought suit against the supermarket based on negligence and Court adopted the “mode of operation” approach. This approach is a variation to the traditional premises liability approach as it does not require a business owner to have constructive or actual notice of the dangerous condition on their premises (i.e., the grape on the ground) to be found negligent. Instead, the plaintiff only need establish that the dangerous condition was related to the owner’s self-service mode of operation. The SJC explained that the rationale of the “mode of operation” approach is such that the owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to his customers, and since a self-service operation involves the reasonable probability that these risks will occur, these risks are foreseeable.

Today, the Massachusetts Appeals Court clarified Sheehan in the case of Bowers v. P. Wile’s, Inc., No. 14-P-313 (Mass. App. Ct. 2015). In Bowers, the plaintiff fell after stepping on a “river stone” that had been on a store’s sidewalk. The “river stone” had been kicked by customer traffic to the sidewalk from a gravel area maintained by the store. At the time the plaintiff was injured, the store displayed merchandise on and around the gravel area, and customers were allowed to help themselves to products from this area. The Appeals Court, reversing the trial court, held that the item causing the injury did not have to be an item offered for sale by the store for the “mode of operation” doctrine to apply. The Court reasoned that it should not matter whether the item that causes the injury was an item that was offered for sale or from any other foreseeable hazard occurring as a result of the store’s use of a self-service mode of operation. The plaintiff in Bowers was successfully represented by SUGARMAN attorneys, Robert W. Casby and David P. McCormack. See Appeals Court decision.

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SUGARMAN presents its first installment of “Massachusetts Ride-Share Liability,” a blog series navigating the liability implications posed by ride-share companies when involved in an accident causing personal injuries.

In early 2014, questions surrounding liability and insurance coverage of ride-share companies first emerged when an UberX driver struck an entire family crossing the street and killed a 6-year-old girl in San Francisco. While liability of ride-share companies may, at first glance, appear to be rather straightforward, unfortunately, it’s not that simple. So, what happens when an individual has been injured in an accident involving a ride-share company in Massachusetts?

Under the Massachusetts personal auto policy, all registered vehicles are required to carry compulsory bodily injury coverage in the amount of $20,000 per person/$40,000 per accident, with the opportunity to purchase optional bodily injury in the same amounts and higher. This compulsory coverage is available only to individuals that are not occupants of the insured vehicle. A large segment of ride-share drivers–such as those for UberX, Lyft, and Sidecar–utilize their own personal vehicles when chauffeuring ride-share passengers, but fail to disclose their commercial activities (driving for profit) to their respective insurers. When an insurer learns of this, usually after an accident has occurred, the insurer will disclaim all optional coverage, leaving only compulsory coverage available to all non-occupants of the insured vehicle. Consequently, there is no coverage available under the ride-share driver’s auto policy for ride-share passengers injured during a ride-share trip.

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