Articles Posted in Evidence

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Under Massachusetts law, a property owner has a duty to keep the property in a safe condition to prevent the harm of individuals entering the property. When a property owner breaches this duty and a person is injured due to a dangerous condition, the property owner may be liable for the injured person’s harm. In some instances, a dangerous condition will clearly constitute a breach of the duty to keep a property reasonably safe, but in other cases, such as when a person is injured due to a hidden defect, it may not be clear if the property owner should be held liable. Recently the Appeals Court of Massachusetts analyzed a property owners’ duty to disclose hidden defects in a case in which a contractor was injured when he fell through a roof that was structurally unsound. If you suffered injuries due to a hidden defect on a Massachusetts property it is vital to engage a skillful Massachusetts personal injury attorney to assist you in seeking any compensation you may be owed from the landowner.

Facts Regarding the Injured Party’s Fall

It is reported that the plaintiff was hired by the defendant contractor to install a roof on a building’s property. The defendant contractor was hired by the defendant property owner. Prior to the completion of the project, the defendant property owner advised the defendant contractor that he wanted the roof of the porch to be re-shingled. The plaintiff began working on the porch roof. Initially, the plaintiff used a ladder, but he then climbed onto the porch roof to continue re-shingling. The porch roof collapsed, causing the plaintiff to fall twelve feet to the ground. The plaintiff, who was a hemophiliac, required extensive medical treatment. He subsequently filed a negligence lawsuit against the defendant property owner and defendant contractor. The plaintiff ultimately settled with the defendant contractor.

Allegedly, it was undisputed that the porch roof was not a safe work surface. The plaintiff argued that the defendant property owner should be held liable for his injuries regardless, due to the fact that the roof had hidden defects. Following a trial, the jury found the defendant property owner negligent but found the plaintiff’s negligence exceeded the negligence of the property owner and therefore, awarded the plaintiff no damages. The plaintiff subsequently appealed.
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In Massachusetts, medical malpractice cases are handled differently than other civil lawsuits, in that the plaintiff must first present evidence of the defendant’s malpractice to a tribunal which will determine if the plaintiff has proffered sufficient evidence of liability to allow a case to proceed. Recently, the Appeals Court of Massachusetts explained the tribunal’s role and standards in evaluating the evidence submitted by a plaintiff’s expert, in a case in which it reversed a dismissal of the plaintiff’s malpractice case. If you or a loved one suffered injuries or an illness because of negligent medical care you should speak with a seasoned Massachusetts personal injury attorney regarding whether you may be able to recover compensation from the negligent care provider.

Facts Regarding the Plaintiff’s Decedent’s Treatment

Reportedly, the plaintiff’s decedent presented to the hospital when she was in labor. She underwent an emergency cesarean section and emergency hysterectomy. She died twenty-five hours later due to hemorrhagic shock and amniotic embolism. Her husband subsequently filed a wrongful death lawsuit alleging that the defendant doctors committed medical malpractice which resulted in the decedent’s death. A hearing was held in front of a medical malpractice tribunal, after which the tribunal found the evidence offered by the plaintiff failed to establish the defendant’s liability. Thus, the tribunal dismissed the plaintiff’s case after which the plaintiff appealed.

The Tribunal’s Role in Evaluating Evidence of Medical Malpractice

Under Massachusetts law, a plaintiff’s offer of proof of medical malpractice is sufficient if there is evidence that the defendant is a health care provider who did not conform to good medical practice, and the plaintiff suffered damages as a result. However, the tribunal should not assess credibility or weigh the strength of the evidence. Rather, it merely must determine whether, if the plaintiff’s evidence is properly substantiated, it is sufficient to raise a legitimate question of liability. The evidence is to be viewed in a light most favorable to the plaintiff. Similarly, the standard for admission of expert testimony at the tribunal level is very lenient. Thus, a fact-based opinion by a qualified expert that the defendant committed malpractice is sufficient.
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In medical malpractice cases, as in all civil claims, the plaintiff must set forth appropriate facts to raise a question of liability as to the defendant medical care providers. Unlike other civil cases, however, the sufficiency of the evidence set forth in a medical malpractice lawsuit is assessed by a tribunal before the plaintiff is allowed to proceed with his or her claim.

Recently, a Massachusetts appellate court reviewed the standard for evaluating whether a plaintiff’s evidence in a medical malpractice case is adequate, in a case in which the plaintiff’s claims were dismissed by the tribunal. If you were harmed by negligent medical care, it is important to retain a skilled Massachusetts personal injury attorney to represent you in your pursuit of compensation, to provide you with a good chance of a favorable outcome under the circumstances.

The Plaintiff’s Lawsuit Against the Defendants

The plaintiff filed a medical malpractice lawsuit against four physicians and a hospital, reportedly arising out of the care provided to her husband. Upon review, the tribunal found that there was insufficient evidence to raise an issue of fact as to liability as to all of the defendants, and dismissed the plaintiff’s claims. The plaintiff appealed.

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The evidence presented by either party can make or break a personal injury case. If the court denies a plaintiff’s request that the court take judicial notice of certain evidence it can result in a defense verdict. The Massachusetts Rules of Evidence limit what materials a court may take judicial notice of, however.

This was illustrated in a recent case decided by the Appeals Court of Massachusetts, in which the court affirmed the trial court’s refusal to take judicial notice of a driver’s manual, or provide the jury with an instruction with language taken from the manual. If you suffered harm due to a car accident, it is important to retain an experienced Massachusetts personal injury attorney to represent you in your claim for compensation so that your case is handled properly.

Factual and Procedural Background

It is reported the plaintiff was driving her vehicle when she was struck by a vehicle driven by the defendant while the defendant was backing out of a residential driveway. The plaintiff filed a lawsuit against the defendant, alleging the defendant’s negligence caused the accident and her harm. Following a trial, the jury found the defendant was not negligent. The plaintiff filed a motion for a new trial, arguing the court erred in declining to admit the Registry of Motor Vehicles Driver Manual (Manual) and in failing to provide the jury with the plaintiff’s requested instruction, which was obtained from the Manual. On appeal, the court affirmed.

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In workers’ compensation disputes it is common for the claimant and employer to agree on some issues and disagree on others. In a hearing to determine whether a claimant is entitled to workers’ compensation benefits, only disputed issues should be considered and ruled upon by the hearing judge.

In Milton v. GT Advanced Technologies, the Industrial Accidents Reviewing Board found that an administrative judge improperly expanded the parameters of a workers’ compensation claim by evaluating undisputed issues, and overturned the judge’s findings.  If you were harmed in a work-related injury it is in your best interest to consult an experienced Massachusetts workers’ compensation attorney to evaluate your case and any potential obstacles to your recovery of benefits.

Factual Scenario

The claimant was employed with the first employer from 2007 through 2012. He then left the first employer to work for the second employer. The claimant’s responsibilities in both positions required him to undertake physically strenuous work. In 2015, the claimant filed a claim against both employers seeking workers’ compensation benefits due to a lower back injury. Following a hearing on the matter, an administrative judge denied both claims. The claimant appealed and on appeal, the reviewing board agreed with the claimant and reversed the decision.

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In analyzing whether an employee suffered a work-related injury, it is common for an employer’s workers’ compensation insurer to require an employee to undergo a medical examination, after which the examining physician will issue a report. The physician report can make or break an employee’s case, depending on whether or not the physician finds the employee suffered a work-related injury.

In Reymundo Villar v. Advanced Auto Parts, the Industrial Accidents Reviewing Board recently held that the specific phrase that an injury did not arise out of employment is not necessary to support a finding that an injury is not work-related in a Massachusetts workers’ compensation claim. If you suffered a work-related injury, you should meet with a skilled Massachusetts workers’ compensation attorney to ensure your claim is evaluated properly.

Facts of the Case

Reportedly, the employee in Villar, injured his right shoulder and thumb while working for the employer. He was unable to work for a short period, after which he underwent physical therapy and returned to work light duty. He then felt pain in his left shoulder, after which he stopped working. The employee continued to undergo physical therapy for several years and ultimately underwent several surgeries on his right shoulder and thumb, with no improvement in his symptoms.

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While most illnesses are apparent at the time of onset, many work-related illnesses are not diagnosed for several years. If you contracted an illness due to your employment, you should be entitled to recover compensation regardless of when the illness became apparent. In Jones’s Case (Gregory B. Jones vs. NSTAR & others, 2017-P-0951), the Court of Appeals of Massachusetts found that an employer was liable for a claimant’s disability benefits for an illness contracted during the claimant’s employment, even though the claimant was not diagnosed for several years after his employment ended. If you are suffering from a work-related illness, you should confer with an experienced Massachusetts workers’ compensation attorney to ensure you recover the workers’ compensation benefits you are owed.

Factual Scenario

Reportedly, the Claimant worked for Employer from 2001 to 2007. In 2006, he began feeling ill, and in 2011 he was diagnosed with Lyme disease. Shortly after that, he took a medical leave from his position with his new company.  After a year of treatment, he was able to resume work. A workers’ compensation benefits hearing was held in front of an administrative judge, during which the Claimant introduced testimony and evidence from medical experts which supported the finding that the Claimant contracted Lyme disease during his employment with Employer.

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In Massachusetts, to recover damages for pain and suffering in a personal injury case in which the alleged injuries arose out of the ownership or operation of a motor vehicle a plaintiff must prove medical costs incurred in treating his or her injuries were in excess of $2,000.00. Recently, in Chenell v. Central Wheelchair & Van Transportation, Inc., the Appeals Court of Massachusetts ruled that a plaintiff is not required to submit medical bills into evidence to prove medical costs exceeded the $2,000.00 threshold. If you sustained injuries in a car accident, you should seek the assistance of a skilled Massachusetts personal injury attorney to assist you in recovering the full amount of compensation you are owed.

Factual Background

Allegedly, Plaintiff used an electric wheelchair and was a passenger in a wheelchair accessible van owned by Defendants. The van reportedly stopped abruptly, causing Plaintiff to fall out of her wheelchair and the wheelchair to fall on top of Plaintiff. Plaintiff sued Defendants for personal injuries and sought damages for pain and suffering. During the trial, Plaintiff presented evidence of medical treatment for injuries she sustained in the incident, including medical records, but did not introduce any medical bills. Additionally, Plaintiff introduced the report of an orthopedic expert who stated within a reasonable degree of medical certainty that Plaintiff suffered an acute injury to her cervical and lumbosacral spine due to the incident. Following the trial, Defendants filed a motion for a directed verdict on the grounds that Plaintiff did not prove the cost of her medical treatment, which the court granted. Plaintiff appealed. The Appellate Division affirmed the trial court ruling, and Plaintiff appealed to the Court of Appeals of Massachusetts.

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Under 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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While 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.