Articles Posted in Legal Strategies

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It is commonly understood that parties harmed due to someone else’s negligence must pursue their claim within the time frame set forth by the applicable statute of limitations, otherwise they waive the right to recover. In certain instances, a statute of limitations can be tolled, such as in cases where an illness or defect could not have been discovered within the time permitted. In other cases, a statute of repose applies and strictly limits the time frame in which a case can be pursued.

Recently, the Supreme Judicial Court of Massachusetts ruled that the six-year statute of repose for tort actions arising out of improvements to real property related operated to eliminate all claims after the applicable period has run, even if the cause of action was not discoverable within that time frame. If you suffered harm due to exposure to a dangerous chemical or product you should meet with an experienced Massachusetts personal injury attorney to discuss the facts of your case and your potential claim for compensation.

Alleged Facts Regarding the Plaintiff’s Harm

Reportedly, the defendant manufactured and sold turbine generators and directed that asbestos be used in the installation of the generators. The defendant also supervised the installations. The plaintiff’s decedent was exposed to asbestos during the installation of the generators in two different power plants, which were constructed between 1971 and 1978. He was diagnosed with mesothelioma in 2015 and subsequently sued the defendant, alleging the defendant negligently exposed the him to asbestos during the construction of the plants. The defendant filed a motion for summary judgment, arguing that the claims were barred by the six-year statute of repose for tort actions arising out of any deficiency or neglect in the design, planning, administration, or construction of any improvement to real property. The district court stated that it was unclear whether the statue applied to cases involving diseases with extended latency periods and certified the question to the Supreme Judicial Court of Massachusetts.

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It is commonly understood that the Massachusetts Workers’ Compensation Act provides that if a person is injured at work and recovers workers’ compensation benefits from his or her employer, the injured party’s acceptance of benefits will act as a release, preventing the injured party from pursuing any further claims from the employer arising out of the incident. However, the injured party is not precluded from pursuing personal injury claims from other parties who may be liable.

A Massachusetts appellate court recently analyzed whether an injured party’s release of his employer via a workers’ compensation claim prevented a non-employer defendant from joining the employer as an additional defendant and alleging the employer was liable for the injured party’s harm. If you were injured while working, you may be able to recover damages from parties other than your employer, and you should speak with a skilled Massachusetts personal injury attorney to discuss the facts of your case and to develop a plan for seeking damages.

Facts Regarding the Plaintiff’s Employment

Reportedly, the plaintiff was hired by the employer to perform construction work. The defendant contracting company subsequently hired the employer to work as a subcontractor at a home owned by the owner of the defendant contracting company. During the course of construction, the plaintiff fell in an unguarded area and suffered severe injuries. He received workers’ compensation benefits from the employer, after which he filed a personal injury lawsuit against the defendant contracting company. The defendant filed an answer to the plaintiff’s complaint but subsequently sought leave to amend the answer to add the employer as an additional defendant. The defendant wished to assert claims of breach of contract, negligence, negligent misrepresentation, and indemnification against the employer. The court denied the defendant’s request for leave, after which the defendant appealed.
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In Massachusetts personal injury cases alleging a breach of duty, it is common for one or both parties to engage expert witnesses, to offer an opinion regarding whether the defendant owed the plaintiff a duty, and whether the breach of any duty resulted in harm to the plaintiff. The testimony of expert witnesses can be precluded or limited if the court finds that the expert has a conflict of interest or has insufficient qualifications to opine on a certain issue.

In a recent case, Kahyaoglu v. Adams, the Appeals Court of Massachusetts held that if a party fails to request a hearing to establish the reliability of expert testimony, he or she waives to right to object on that issue, affirming Commonwealth v. Fritz. If you sustained personal injuries because of someone else’s negligent actions, it is important to retain a knowledgeable Massachusetts personal injury attorney to prevent expert testimony that should be precluded from being used as evidence against you.

Factual Background

Reportedly, the plaintiff alleged she suffered personal injuries due to the defendant’s negligence in exiting his vehicle. Following a trial, a jury found in favor of the defendant. The Plaintiff filed a motion for a new trial, which the trial court denied. Plaintiff filed a pro se appeal of both the jury verdict and the denial of her motion. On appeal, the court affirmed the trial court ruling.

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Under Massachusetts personal injury law, to recover from a negligence claim you must show that the defendant breached a duty of care owed to you and that the breach caused you to suffer injuries. It is important to understand what must be proven in order to establish negligence, because a failure to prove the elements of negligence can affect your right to recover. In Caruso v. Catone, the Appeals Court of Massachusetts recently held that Plaintiff’s attorney waived the right to argue the judge gave improper instructions to the jury regarding breach of duty and causation, which ultimately resulted in a defense verdict.

In Caruso, plaintiff and defendant were involved in an accident in which defendant struck plaintiff with his car. Plaintiff sued defendant for negligence. Following a trial, a jury determined Plaintiff had not established the element of negligence and denied plaintiff the right to recover damages. Plaintiff filed a motion for a new trial, which the court denied. Plaintiff then appealed to the Appeals Court of Massachusetts, which affirmed the lower court ruling. On appeal, plaintiff argued that defendant’s testimony at trial constituted an admission that he breached the duty of care. Specifically, defendant, who hit plaintiff when he was making a left turn, testified that he was looking right prior to the turn, even though he was driving toward the left. Further, defendant agreed with plaintiff’s counsel that he was not looking in the direction he was driving at the time of impact. Plaintiff believed defendant’s behavior constituted negligence as a matter of law.

The court found, however, that it was not necessary to address the issue of whether defendant acted negligently, due to the fact that the judge improperly addressed the jury on the issue of negligence. Specifically, in instructing the jury on the elements of negligence the judge conflated the elements of breach and causation and erroneously advised the jury that to find defendant negligent they must find that he breached the duty of care and that the breach was the cause of the accident. The court noted this was not a proper instruction under Massachusetts law, which requires breach and causation to be separate elements of negligence. As plaintiff’s attorney did not object to the instruction he waived the right to argue the issue on appeal. The court stated that due to the improper instruction the jury’s verdict may mean the jury found that the defendant drove negligently, but the accident may have occurred even if he was driving appropriately. The court noted, however, the record reflected that the accident would have occurred regardless, due to other facts regarding the incident.

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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.

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While some workplace injuries resolve in a relatively short time, others continue to cause issues years after the initial injury. Employees are entitled to recover compensation for almost all work related injuries, but when an employee suffers more than one injury, it can become unclear who is responsible for providing workers’ compensation benefits. Pursuant to Massachusetts’s workers’ compensation law, only one insurer is liable for benefits for a disability, even if the employee suffers two or more injuries that contribute to the disability. In Lombardo’s Case, the Court of Appeals of Massachusetts explained that whichever insurer provided insurance at the time of the latest injury that contributed to an employee’s disability is liable for the entire amount of compensation benefits. If you sustained injuries in a work related accident, you should retain an experienced workers’ compensation attorney to assist you in recovering the full amount of benefits to which you are entitled.

Factual Background

Allegedly, the employee in Lombardo suffered a knee injury while in the course of his job duties. His employer’s workers’ compensation insurer accepted his claim and paid him the benefits he was owed. The employee subsequently returned to work without issue for ten years. Reportedly, he was then diagnosed with arthritis and eventually underwent a total knee replacement. He retired prior to his knee replacement and filed a claim with the Department of Industrial Accidents for additional disability benefits.

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People are often asked to sign waivers before engaging in activities that may be perceived as dangerous. Under Massachusetts personal injury law, signing such a waiver generally precludes the person who signed the waiver from pursuing a negligence claim against the released party. In Cahalane v. Skydive Cape Cod, however, the Appeals Court of the Commonwealth of Massachusetts held that it would not prevent the injured party from recovering for any gross negligence in contravention of the terms of the agreement.

In Cahalane, Plaintiff engaged Defendant’s services to go on a tandem skydive jump. Prior to embarking on her jump, Plaintiff signed a waiver in which she released any claims against Defendant for negligence or gross negligence. Plaintiff was permitted to purchase a release from the waiver, but chose not to do so. During the jump, Plaintiff was attached to an instructor. As they approached the ground the instructor performed a hook turn. Hook turns are disapproved of in skydiving safety bulletins, as they are a leading cause of death and injury in skydiving. Due to the manner in which the pair landed, both of Plaintiff’s femurs were fractured on impact. Plaintiff sued Defendant, alleging negligence and gross negligence. Defendant filed a Motion for Summary Judgment, arguing that the waiver barred Plaintiff’s claims. The trial court granted Defendant’s Motion and Plaintiff appealed, arguing the waiver was induced by fraud and was unenforceable. On appeal, the court held that the waiver was enforceable and precluded Plaintiff’s negligence claim but ruled that it did not bar Plaintiff’s gross negligence claim.

The court noted that Plaintiff was given ample opportunity to review the waiver and did not produce evidence that anyone made any false representations to her regarding the waiver. As such, the court held it was enforceable. The court noted, however, that while Massachusetts law favors the enforcement of releases for liability for negligent acts, a party cannot immunize itself from liability for grossly negligent or reckless acts. The court explained that gross negligence is more than a failure to exercise ordinary care and was better explained as great negligence, or conduct without any diligence or care. The court noted each case must be analyzed on its facts to determine if the defendant’s actions were grossly negligent, but additionally noted that a moment of inattentiveness in a dangerous situation could constitute gross negligence. As such, the court held that the question of whether Defendant was grossly negligent and therefore liable to Plaintiff could not be decided via summary judgment but must be submitted to a jury.

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Collateral estoppel is a long-standing rule of law that people can only get “one bite of the apple.” In other words, people are not entitled to re-litigate the same facts or claims until they reach a verdict of their liking. There are certain requirements that must be met to preclude litigation due to collateral estoppel, however, and simply because facts were previously decided in another forum does not automatically prevent a court from allowing the same facts to be litigated. In workers’ compensation cases it is important to know whether you or your employer’s insurer are held to facts determined in a prior proceeding. In Yahoub’s case, the Appeals Court of the Commonwealth of Massachusetts held that an employer was not barred from litigating facts in a Massachusetts workers’ compensation claim that were previously found by the Department of Industrial Accidents.

In Yahoub, claimant was working as a custodian for the town of Milton when he sustained injuries in an altercation with his supervisor. After an investigation, claimant was determined to be the aggressor of the incident and was terminated. He then filed a claim for unemployment benefits with the Division of Unemployment Assistance who awarded him benefits after finding the town had not proven claimant engaged in deliberate misconduct that constituted a willful disregard of the town’s interest. The town appealed to the District Court, but the District Court affirmed the decision of the Division of Unemployment Assistance.

Claimant then filed a claim with the Department of Industrial Accidents seeking workers’ compensation benefits for severe emotional distress, which he alleged was caused by the altercation. A hearing was conducted in which testimony was presented from claimant, his supervisor, and a witness. During the hearing, the town’s workers’ compensation insurer argued claimant was not entitled to recover benefits due to the fact that his actions amounted to willful and serious misconduct and his termination was a bona fide personnel action.  Following the first day of the hearing, claimant moved to prohibit the insurer from re-litigating the facts found by the Division of Unemployment Assistance, under a theory of collateral estoppel. The administrative judge denied claimant’s motion due to lack of privity between the parties in each proceeding. At the conclusion of the hearing, the administrative judge agreed with the insurer and found claimant had initiated the altercation, and denied claimant’s claim. Claimant subsequently appealed to the reviewing board. The reviewing board affirmed the administrative judge’s ruling. Claimant subsequently filed an appeal with the Appeals Court of the Commonwealth of Massachusetts.

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If you are injured while performing the duties of your job, you are most likely entitled to workers’ compensation benefits. Under Massachusetts workers’ compensation law, you are only entitled to benefits that are reasonable and related to your injury. There are guidelines set forth as to what treatment is considered reasonable, and any deviation from the guidelines is presumed to be both unreasonable and inappropriate. In Thibeault’s Case, however, the Court of Appeals of Massachusetts held the presumption of unreasonableness can be overcome if the facts of the case indicate other treatment is acceptable.In Thibeault, the employee was a heavy equipment operator, who injured his lower back moving a steel plate while working for his employer. He was diagnosed with discogenic back pain and a tear and disc bulge in the lumbar region. The employee underwent treatment for his back injury but declined to undergo surgery. He filed a workers’ compensation claim and received a lump sum settlement. The employee continued to get treatment from his primary care physician for his back injuries after he received the settlement. Part of the employee’s treatment included prescriptions for narcotic pain medication.

Subsequently, eight years after the employee received his lump sum settlement, he filed a post lump sum claim for medical benefits, which was denied. He then underwent an independent medical examination, after which the examining doctor issued a report and was deposed. The doctor stated, in part, that the employee suffered from chronic low back pain, which the employee was treating with medication. The doctor further stated that, although there did not seem to be any steps taken to reduce the dosage or wean the employee off the medication, continuing to treat with medication was reasonable, and the treatment was causally related to the employee’s workplace injury.

A hearing was held on the employee’s claim for post lump sum benefits, after which the administrative judge ruled in favor of the employee. The judge noted that while treating with medication was not the preferred protocol under the treatment guidelines, the doctor who performed the employee’s medical exam found the treatment to be reasonable and related to the original injury. The insurer appealed to the Department of Industrial Accidents reviewing board, which affirmed the administrative judge’s ruling. The insurer then appealed to the Appeals Court of Massachusetts.

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