Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

Insurance Defense and Litigation

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Dooling Wins Premises Liability Jury Trial in Berkshire County

Joseph Coupal - Thursday, February 02, 2017

Curt Dooling recently obtained a defense verdict on behalf of his clients in a jury trial in the Pittsfield District Court in Berkshire County.

The plaintiff sustained multiple leg fractures after tripping over an entrance rug in a convenience store in Pittsfield, Massachusetts. Dooling represented the owner and operator of the convenience store. The plaintiff alleged that the entrance rug on which he tripped was defective because it failed to comply with American National Standard B101.6, the Standard Guide for Commercial Entrance Matting. The plaintiff also claimed that the store failed to properly secure the mat to the floor, which created a tripping hazard.

Before the trial began, Dooling filed a motion in limine to exclude any evidence regarding the size and type of the entrance rug on which the plaintiff tripped and whether the rug complied with any industry standard or regulation. The trial judge allowed Dooling’s motion in limine, and as a result, the plaintiff was foreclosed from presenting evidence in support of key elements of his theory of liability.

The jury deliberated for less than one hour and returned a defense verdict, determining that Pierce & Mandell’s clients were not negligent.

Bob Pierce Successfully Tries Four Jury Cases in 2016

Joseph Coupal - Thursday, December 15, 2016

Founding shareholder Bob Pierce took four cases to jury trials in 2016. The cases were tried in four separate superior courts: Essex (Newburyport), Middlesex, Suffolk, and Dukes County (Martha’s Vineyard). In three of the cases, Bob achieved defense verdicts on behalf of his clients; in the fourth, the case settled after several days of trial based on a payment of less than 10% of plaintiff’s pre-trial demand.

Two of the cases were tort cases with large claimed damages. In one case, the plaintiff suffered a herniated disc in her back, which was exacerbated by a botched surgery which required multiple surgeries to correct. The plaintiff had well over $300,000 in medical bills.  Despite the substantial damages and a sympathetic plaintiff, the jury returned a defense verdict for Bob’s client.

In the second tort case, the plaintiff claimed a serious brain injury, and over $1 Million in lost earnings.  Once again, the jury returned a defense verdict, awarding the plaintiff nothing.

The third case involved claims by the plaintiff that the defendants, one of whom was defended by Pierce & Mandell attorney Lena Finnerty, had made false statements to the police about the plaintiff’s actions. As a result of these alleged false statements, the plaintiff was arrested, and charged with crimes. The plaintiff’s arrest generated substantial publicity in Boston newspapers and TV news. The plaintiff claimed that the arrest and attendant publicity caused her to lose substantial money in connection with the business she ran. Specifically, plaintiff claimed well over $1 Million in lost income. However, as a result of rulings on motions in limine in favor of the defense, and the inability of the plaintiff to obtain favorable testimony from the six witnesses who testified at trial, the case settled for a modest amount that was a fraction of the pre-trial demand.

The fourth case was a product liability case in which the plaintiff lost his left eye. The case was tried on Martha’s Vineyard, and the plaintiff was very sympathetic because he had obviously suffered an extremely serious and life changing injury. After a trial spanning close to two weeks, the jury returned a verdict in Bob’s client’s favor and awarded the plaintiff nothing.

PIERCE and DOOLING WIN PRODUCT LIABILITY TRIAL ON MARTHA’S VINEYARD

Joseph Coupal - Wednesday, December 14, 2016

Pierce & Mandell, Robert Pierce, Boston, MAPierce & Mandell, Curtis Dooling, Boston, MABob Pierce and Curt Dooling recently obtained a defense verdict on behalf of their client in a jury trial in Dukes County Superior Court on Martha’s Vineyard.

The plaintiff in the case sustained a serious eye injury, which eventually led to the loss of the plaintiff’s eye, when he was struck with a golf disc designed and manufactured by Pierce & Mandell’s client. The plaintiff claimed that the golf disc that struck and injured him was dangerously defective because of its design and because it lacked proper warnings alerting users to its dangers. The firm challenged the plaintiff’s credibility by showing that the plaintiff’s version of how he was injured was not credible based on witness testimony and relevant medical records. The firm also successfully argued that the golf disc was not dangerously defective.

The case was challenging due to the very serious injury that the plaintiff suffered, and the fact that the individual who threw the disc that struck the plaintiff was no longer living in the United States and was unable to testify at trial.  Rather, his deposition testimony was read to the jury.

The case was tried over 6 days, and the jury deliberated for approximately 7 hours. The jury determined that Pierce & Mandell’s client did not breach the warranty of merchantability and that the golf disc was not dangerously defective.

Bob Pierce has now achieved complete victory for his clients in the last eight jury cases that went to verdict.

Liability Waivers and Releases – Who and What is Being Released - Boston, MA

Joseph Coupal - Thursday, December 01, 2016

Pierce and Mandell, PC. Boston, MAby Curtis Dooling

Superior Court Judge Dennis Curran recently allowed the estate of a man who died at a YMCA facility to proceed with a wrongful death claim against the YMCA even though the decedent signed a liability release. The decedent, who was participating in an elderly exercise program at the YMCA, was found unconscious in a steam room. YMCA employees could not access the control room to shut off the steam heat. The decedent experienced catastrophic burn injuries and died shortly after being transported to the hospital.

The decedent signed a release absolving the Silver Sneakers program from all liability. The Silver Sneakers program was an elderly exercise program that encouraged seniors to join the YMCA to exercise. The program was operated by the YMCA at a YMCA facility. Although the release had broad and somewhat ambiguous release language, it did not specifically mention the YMCA as a released party. Thus, the court held that the plaintiff’s claims against the YMCA and its employees were not barred by the release. The court also held that the release did not bar claims for gross negligence because these claims were not specifically mentioned in the release.

This case demonstrates the importance of the language of a liability release. Liability releases and waivers are ubiquitous in modern society. Businesses often make patrons sign releases to protect against claims and lawsuits. However, as this case makes clear, poorly and vaguely written releases won’t stand up in court. It is vitally important to ensure that liability releases and waivers are carefully drafted to release the numerous potential claims that could be brought and to identify the parties being released as anyone or anything that is involved in any way in owning, managing or working at a business, facility or event.

Pierce & Mandell’s litigators have years of experience advising and representing businesses in risk and claims management and have litigated countless cases involving liability waivers and releases.

Pierce & Mandell Attorneys Achieve Defense Verdict

Joseph Coupal - Wednesday, September 21, 2016

Bob Pierce and Lena Finnerty obtained a defense verdict on behalf of their client in a jury trial in Middlesex Superior Court that concluded on September 19, 2016.

The plaintiff in the case claimed that he suffered serious head injuries when he fell on black ice in the parking lot of the office park owned by Pierce & Mandell’s clients.  Plaintiff claimed in excess of $1 Million in lost earning capacity, and asked the jury for an award of over $4 Million.  The firm defended the case on the basis that the property owner client was not negligent, and that if the plaintiff did fall on black ice, the fall was caused by his own negligence.

The case was tried over 7 days, and the jury deliberated for approximately 2 ½ hours.  The jury determined that Pierce & Mandell’s client was not negligent, and the plaintiff was awarded nothing.

Bob Pierce has now achieved complete victory for his clients in well over 80% of the cases he has tried.

Curt Dooling Quoted in Massachusetts Lawyers Weekly Article on Recent SJC Decision DiCarlo v. Suffolk Construction Co., Inc., et al.

Joseph Coupal - Wednesday, July 06, 2016

Pierce & Mandell attorney Curt Dooling was quoted in a Massachusetts Lawyers Weekly article on the recent Supreme Judicial Court decision of DiCarlo v. Suffolk Construction Co., Inc., et al. In DiCarlo, the SJC held that pain and suffering damages were not subject to a workers compensation lien pursuant to G. L. c. 152, § 15.

In the article, Dooling discussed the implication of the case on the settlement of personal injury claims. Dooling noted that workers compensation insurers are less likely to take a hard line in settlement discussions because the SJC has made it clear that pain and suffering damages are not subject to a workers compensation lien. Read Curt’s comments and the full article.

Pain and Suffering Damages Not Subject to Workers’ Compensation Lien - Boston, MA

Joseph Coupal - Tuesday, March 01, 2016

by Curtis B. Dooling

The Supreme Judicial Court recently held that pain and suffering damages recovered by an injured plaintiff in a third-party personal injury case were not subject to a lien held by a workers’ compensation insurer that paid benefits to the injured plaintiff. Although it is too early to tell what effect this case will have in civil practice, the likely result is that tort cases with large workers’ compensation liens may be easier to settle by allocating portions of settlements to pain and suffering damages, circumventing the statutory lien rights of workers’ compensation insurers. However, settlement agreements that are subject to a workers’ compensation lien still have to be approved by a judge so any allocation must be reasonable.

DiCarlo v. Suffolk Construction Co., Inc., 2015 WL 10045032, involved two separate underlying cases that both arose out of workplace accidents. In both cases, the plaintiffs, Robert DiCarlo and Bernard Martin, sustained injuries at work and both collected workers’ compensation benefits. Both plaintiffs then reached settlement agreements with third parties, which included damages for pain and suffering. In both cases, the workers’ compensation insurer sought reimbursement under G. L. c. 152, § 15 from the plaintiffs’ settlement proceeds, including pain and suffering damages.

In DiCarlo’s case, a Superior Court judge rejected a settlement agreement because it did not permit the workers’ compensation insurer to recover a lien on the entire settlement amount, including pain and suffering damages. In Martin’s case, a Superior Court judge allowed a similar settlement agreement. The practice of allocating damages between pain and suffering and special damages is relatively new, leading to inconsistent results, as evidenced by the conflicting decisions in the DiCarlo case and Martin case.

The SJC focused on the language of the workers’ compensation statute, which permits a workers’ compensation insurer to recover benefits paid to injured workers’ where the injured worker recovers damages for the same injury from a third-party tortfeasor. A workers’ compensation insurer is entitled to “the gross sum received in payment for the injury.” G. L. c. 152, § 15. The issue before the SJC was whether “injury” included pain and suffering damages. The Court concluded that it did not.

The Court reasoned that since a workers’ compensation insurer pays for lost wages and medical expenses only, not pain and suffering damages, it is not entitled to be reimbursed for something that it did not pay.

Interestingly, the Court recognized the chance that a plaintiff and settling tortfeasor may attempt to inappropriately allocate the bulk of settlement proceeds to pain and suffering damages in order to work around a large workers’ compensation lien. However, the Court noted that since settlements needed to be approved by a judge after a hearing where the workers’ compensation insurer is permitted to participate, such inappropriate allocation would not be permitted.

The American Insurance Association submitted an amicus curiae brief in support of the workers’ compensation insurer’s position, evidence of the fact that workers’ compensation insurers are not going to be pleased with this decision. On the other hand, general liability insurers may be in favor of the decision because it will make it easier to resolve tort claims with large workers’ compensation liens. Going forward, plaintiff’s lawyers may request that juries allocate damages between pain and suffering and medical/lost wage damages to lessen the amount of jury awards that are subject to a workers’ compensation lien.

Pierce & Mandell’s litigation attorneys have years of experience defending personal injury claims on behalf of insurers and self-insureds. Please contact us with any questions about this new development or any other litigation need.

Recent Changes to Superior Court Rule 9A

Joseph Coupal - Friday, January 22, 2016

By: Curtis B. Dooling

Superior Court Rule 9A governs the service and filing of all civil motions in the Massachusetts Superior Court. A thorough understanding of Rule 9A is essential to a successful litigation practice.

A recent change to Rule 9A that went into effect on January 1, 2016 has simplified the manner in which reply memoranda can be filed. Under the pre-January 1, 2016 version of Rule 9A(3), a moving party was required to seek leave of court to file a reply memorandum after receiving the opposition papers.

Under the newly enacted version, the moving party may file a reply brief without seeking leave of court in order to address “matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum.” The reply memorandum is limited to five pages and is to be filed with the Rule 9A package.

Parties must still seek leave of court to file sur-replies, but the procedure to request leave of court has also been slightly changed. A request for leave of court to file a sur-reply must be in the form of a pleading, can be no longer than one page, and must be addressed to the session clerk.

These changes were put in place in an attempt to remove some confusion surrounding the correct way to request leave of court to file reply and sur-reply memoranda. Under the pre-January 1, 2016 version of the rule, it was unclear whether the moving party needed to provide the proposed reply memorandum to the court when requesting leave of court to file the reply. Some clerks and judges required this, while others didn’t.

Under the pre-January 1, 2016 version of the rule, it was also somewhat unclear to whom the request for leave of court should be addressed, resulting in delays in the filing of motions. If no response came from the judge before the Rule 9A filing deadline, reply memoranda were often filed after the Rule 9A package and were not received by the judge in a timely manner.

This change to Superior Court Rule 9A, although not monumental, nevertheless is important for litigators to understand and to follow. The change to the reply memorandum procedure is also an important step in streamlining Superior Court motion practice.

FIRM ACHIEVES DEFENSE VERDICT

Joseph Coupal - Monday, January 11, 2016

On January 8, 2016, an Essex County (Newburyport)  jury returned a defense verdict in favor of Pierce & Mandell’s client on plaintiff’s significant personal injury claim.  Bob Pierce tried the case, and Scott Zanolli assisted.

The plaintiff in the case claimed that she fell on the walkway of a condominium complex due to untreated snow and ice.   Plaintiff brought claims against the condominium trust, the condominium manager, and Pierce & Mandell’s client, the snow removal contractor.  The plaintiff claimed that she suffered a herniated disc in her back as a result of the fall.  She underwent surgery about one month after the accident, and the surgery was allegedly botched, causing the plaintiff to suffer a torn aortic artery.   The plaintiff was airlifted to Mass General Hospital, where she underwent emergency life-saving surgery.

Under Massachusetts law, a defendant is liable for all foreseeable consequences of its negligence, including a surgeon’s malpractice.   Thus, if the plaintiff succeeded at trial, Pierce & Mandell’s client would have been liable for not only the herniated disc, but the injuries arising out of the claimed medical malpractice.   The plaintiff’s medical bills approached $400,000, and the plaintiff was permanently disabled after the accident.  Plaintiff’s initial demand for settlement was $5 Million.

On the first day of trial, Bob Pierce convinced the court that the liability aspects of the trial should be bifurcated from the damages portion of the case.  This ruling prohibited the plaintiff from offering evidence of her significant injuries during the liability trial.

After a several day trial on liability, the jury ruled that Pierce & Mandell’s client was not negligent, resulting in a  complete victory for Pierce & Mandell and its client.

Bob Pierce has now achieved complete victories for his clients in his last 6 jury trials.   Overall, Bob has achieved complete victory for his clients in over 85% of the cases he has tried to conclusion.

Available Recoverable Damages In Wrongful Death Actions - Boston, MA

Joseph Coupal - Friday, December 04, 2015

By: Scott M. Zanolli

In wrongful death cases, estates of the deceased are entitled to specific statutory damages.  Under Massachusetts law, these damages are governed by G.L. c. 229, §2.  A claim for wrongful death is enforced by the personal representative of the decedent’s estate for the benefit of the statutory beneficiaries.  Under G.L. c. 229, §1, the beneficiaries of the decedent’s estate entitled to recovery are the surviving spouse, children of the deceased, and, if neither of those apply, the next of kin.

These individuals may recover the fair monetary value for: (i) the loss of reasonably expected net income, (ii) “consortium-like damages,” i.e., loss of protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice, (iii) conscious pain and suffering, and (iv) reasonable funeral expenses.  Punitive damages of no less than Five Thousand Dollars ($5,000) may be awarded when the decedent’s death was caused by malicious, willful, wanton or reckless conduct, or by gross negligence.

Loss of Reasonably Expected Net Income

Determination of the amount of lost income damages is largely dependent on probabilities, and many factors will be taken into account by a court or jury, Lane v. Meserve, 20 Mass. App. Ct. 659, 667 (Mass. App. Ct. 1985), including the life expectancy of both the decedent and the beneficiaries, and the future prospects of the decedent.  The award is generally equal to the amount of net income that the decedent would reasonably have been expected to contribute to the beneficiaries.

Funeral Expenses

The estate of the deceased is entitled to recover funeral expenses.  The portion of the statute relating to funeral expenses does not refer to beneficiaries because funeral expenses become debts of the decedent's estate. Burt v. Meyer, 400 Mass. 185, 186 (1987).

“Consortium-like” Damages, i.e., loss of protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice

Massachusetts does not recognize a separate cause of action for loss of consortium for family members in wrongful death cases.  However, the administrator of the estate of the deceased may bring suit for recovery for loss of consortium under the wrongful death statute, Litif v. United States, 682 F. Supp. 2d 60 (D. Mass. 2010), and the statute contemplates recovery for both spousal companionship and loss of consortium for the child of a deceased parent. Doyon v. Travelers Indem. Co., 22 Mass. App. Ct. 336 (1986).

Conscious Pain and Suffering

General Laws c. 229, § 6 permits recovery for the decedent's conscious pain and suffering between the time of the injury and the time of the death.  Recovery is made on behalf of the estate and is divided among the surviving beneficiaries under the terms of the decedent's will, or the law of intestate succession if there is no will.  The term "conscious" is not meant to be interpreted “with the refinements one expects to find in a study of the elusive subject of consciousness,” but rather, the conscious suffering shown by proof beyond mere conjecture. Or v. Edwards, 62 Mass App 475 (2004).  A potential subset of conscious pain and suffering is recovery for fear of impending or imminent death.  This is an unsettled area of law in Massachusetts, but has been recognized in other jurisdictions under certain circumstances, most notably in aviation accidents.

Punitive Damages

Punitive damages are available under the wrongful death statute in circumstances where death was caused by the malicious, willful, wanton or reckless conduct, or by the gross negligence of the defendant.  This category of damages is designed to punish the defendant, not to make the plaintiff whole. Burt v. Meyer, 400 Mass. 185 (1987).  Under this portion of the statute, the negligence of the deceased is not to be taken into account. Lane v. Meserve, 20 Mass. App. Ct. 659 (1985).

Damages in wrongful death cases are extremely complex to evaluate and estimate.  This is due in part to the fact that consortium type damages are wholly subjective, and thus their quantification can vary widely from juror to juror.  Also, determinations related to conscious pain and suffering are muddled in instances where the decedent died instantly, but suffered from an obvious fear of impending death.  Pierce & Mandell has considerable experience handling complex insurance defense, as well as wrongful death litigation, and can assist anyone involved in this type of case.


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