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In any civil lawsuit, the parties will engage in discovery during which they will exchange documents and depose witnesses to attempt to obtain facts in support of their position. Not all materials are discoverable, however, as certain information is protected by privilege. In a recent product liability case in which it is alleged that medication caused birth defects,  the United States District Court for the District of Massachusetts discussed when a plaintiff can be compelled to disclose information relied upon by and obtained from a consulting expert. If you were or a loved one suffered injuries due to  a defective product you should speak with a trusted Massachusetts personal injury attorney about your potential claims.

Facts and Procedure of the Case

It is reported that plaintiffs filed a lawsuit against the defendant setting forth product liability claims alleging that  drug manufactured by the defendant and prescribed to pregnant women caused birth defects in their children. In part, the plaintiffs relied on a report by an expert third-party witness, in support of their argument that the defendant’s drug caused birth defects. The defendants sought to depose the third-party witness, and sought documents regarding the relationship between the plaintiffs’ attorneys and the third-party witness via discovery. Plaintiffs and the third-party witness both filed motions for a protective order arguing that the documents sought were protected by the work-product doctrine. The court ultimately denied the motions, finding that the documents were not privileged.

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Massachusetts workers’ compensation requires insurers to pay for appropriate and necessary treatment under §§ 13 and 30 of the Workers’ Compensation Act for employees who suffer a workplace injury. Since an employee’s medical history can affect whether or not money is paid for a disability, multiple injuries and health conditions can limit or prevent payments for reasonable and necessary treatment. In one of the last Reviewing Board decisions of 2017, the Board assessed whether or not an administrative judge’s order for the insurer to pay expenses under §§ 13 and 30 of the workers’ compensation act was made in error after he refused to allow additional medical evidence during the proceeding.

The employee suffered a repetitive motion workplace injury to her left elbow in 1997. The woman underwent two unsuccessful operations in 1997 and 1998, which caused nerve damage and enduring pain in her left arm. In 1999, she received a lump sum for the injury, entering into an agreement with the insurer, which agreed to pay for reasonable, necessary related medical expenses. A year after this agreement, she began taking Fentanyl and Vicodin to help manage pain.

Between the agreement and the proceeding, the injured employee earned an advance degree and returned to work for a different employer. In 2009, she broke two toes and sprained her ankle in an accident unrelated to work, developing Reflex Sympathy Dystrophy (RSD) in her right leg. For this, she was prescribed Fentanyl, Vicodin, and Lyrica for pain. Between 2010 and 2015, her health insurer paid for these medications.

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