Articles Posted in Evidence

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witness testimonyUnder Massachusetts law, hearsay is not admissible testimony at a trial. There are exceptions to this rule, however, which allow certain testimony that is considered hearsay to be admitted. The Appeals Court of Massachusetts recently held in Hasouris v. Sorour, a medical malpractice action, that a witness’s deposition testimony can be used at a trial under the prior recorded testimony to the rule against hearsay, due to the witness’s refusal to testify. If you or a loved one suffered injuries due to medical malpractice, you should retain a personal injury attorney seasoned in handling Massachusetts medical malpractice cases to pursue your claim, to ensure all relevant testimony and evidence that will support your case is obtained and preserved.

In Hasouris, Plaintiff sued Defendants for medical malpractice and wrongful death, alleging negligent medical care provided by physicians during Plaintiff’s wife’s knee replacement surgery, which resulted in pain and suffering and Plaintiff’s wife’s ultimate death. A Doctor involved in Plaintiff’s wife’s care was deposed. The Doctor was then indicted for Medicare fraud. Doctor filed a motion to stay and bifurcate the trial and set forth his intent not to testify at the trial by invoking his privilege against self-incrimination. His motion was denied. A Second Doctor filed a notice of his intent to use Doctor’s deposition testimony at trial, due to Doctor’s unavailability, arguing that it fell under the prior recorded testimony exception to the rule prohibiting hearsay. Doctor settled prior to trial, and stated he would not appear at the trial. The judge advised the parties if Doctor did not appear at trial he would admit Doctor’s deposition testimony. Plaintiff made objections to certain portions of the deposition transcript, which were sustained in part. A jury found in favor of Second Doctor, and Plaintiff filed a motion for a new trial. The judge denied Plaintiff’s motion and Plaintiff appealed.

On appeal, Plaintiff argued the judge erred in admitting Doctor’s deposition testimony. The court noted the trial court judge relied on the exception to the rule against hearsay that permitted prior recorded testimony of a witness that is unavailable to be admitted into evidence. The court noted that the issue in the subject case was whether the witness was truly unavailable due to his refusal to testify by invoking his right against self-incrimination. The court noted a witness asserting the right against self-incrimination cannot be forced to testify unless it can be proven the testimony will not be incriminating. In analyzing whether the testimony sought will be incriminating, the court must consider what information will be sought and whether the answers may incriminate the witness. This inquiry was not done in the subject case but the court found the invocation of the right to be valid regardless. Further, the court noted that the deposition testimony was admissible under the Massachusetts Rules of Civil Procedure, because Doctor’s attendance could not be procured for the trial, due to his refusal to comply with a subpoena to attend. As such, the court affirmed the trial court ruling.

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knee injuryWhile many injuries sustained at work are minor, some workplace injuries cause permanent disabilities that leave the injured employee unable to earn a living. Under Massachusetts workers’ compensation law, you must prove that you are unable to earn wages of any kind to show that you are permanently disabled. If you do not present sufficient evidence of your permanent disability, you will be denied compensation. In Rivera’s Case, the Court of Appeals of Massachusetts held that simply showing an employee is unable to return to his prior employment is insufficient to show the employee was unable to earn wages in any position. If you were injured at work, it is important to consult with a seasoned workers’ compensation attorney in your pursuit of workers’ compensation benefits, to ensure your case is properly handled.

Facts of the Case

In Rivera, the employee injured his knees breaking up a fight at work in 1996, and subsequently underwent bilateral knee surgery. He received total incapacity benefits from his employer until he returned to work in 2006. In 2011, the employee then sought additional treatment for his left knee and filed a claim for benefits to enable him to undergo an evaluation. An administrative judge set forth a conference order stating employer was required to pay for the evaluation. The employee then underwent an MRI of his knee and an orthopedic surgeon recommended the surgery. The employer appealed the conference order but at the same time issued a utilization review approval of the suggested surgery. The employee underwent surgery, for which the employer denied coverage. The employee was out of work from March 13, 2012 through June 18, 2012, for which he filed a claim for benefits. The employer then paid for the surgery and medical services, but did not offer total incapacity benefits for the period of time the employee did not work.

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pharmacyMost medications have side effects, but some medications can cause more harm than good. If you sustained injuries or illness caused by adverse effects of medication, you may be entitled to recover damages. To recover on a claim against a pharmaceutical manufacturer, under Massachusetts personal injury law you must present expert evidence regarding the cause of your injuries. In Jackson v. Johnson, the United States District Court for the District of Massachusetts dismissed Plaintiff’s claims against a pharmaceutical manufacturer, due to Plaintiff’s failure to produce sufficient expert evidence in support of his claims. If you suffered injuries due to side effects caused by medication, it is essential to retain an experienced personal injury attorney to ensure the evidence necessary to support your claim is obtained.

Facts of the Case

In Jackson, Plaintiff alleged he was prescribed anti-psychotic medication, which caused him to become obese and develop diabetes and gynecomastia. Plaintiff sued defendant pharmaceutical manufacturer, setting forth claims arising out of negligence (negligence, negligent failure to warn, negligent misrepresentation and negligent infliction of emotional distress), breach of warranty (breach of warranty and breach of express warranty), products liability (strict products liability and strict products liability failure to warn), fraudulent concealment, and unfair and deceptive practices. After Plaintiff filed his lawsuit he sought and received several extensions of the deadlines for completing discovery and for filing disclosures of the experts who he would call on to support his claims. Plaintiff eventually provided disclosures for three of his treating physicians, whom he identified as experts. Defendant subsequently filed a Motion for Summary Judgment, asking the court to dismiss Plaintiff’s claims. Plaintiff argued that the Motion was premature, as discovery had not yet been completed. The court granted Defendant’s Motion.