Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

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

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Insurance Defense and Litigation


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.


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.

Pierce Mandell Secures Important Appellate Victory Case Involving Disparate Fault Theory of Common Law Indemnity

Tuesday, October 01, 2013

Pierce & Mandell, P.C. has secured an important appellate victory for a subcontractor and buyer of industrial scaffolding equipment in the appeal of a dismissal of the indemnity claims the equipment’s manufacturer.  

In Fraco Products, Ltd., et al. v. Bostonian Masonry Corp., the Massachusetts Appeals Court addressed whether or not the trial court erred in dismissing the indemnity claims of the manufacturer of industrial mast-climbing scaffolding equipment that collapsed on Boylston Street in Boston in April 2006.  In its appeal, the manufacturer sought indemnity for the amount it paid to settle to the claims filed by the estate of an employee of the purchaser who was killed in the accident.  

Robert Pierce, a shareholder at Pierce & Mandell, argued successfully for the defense.  

Among the issues addressed by the Appeals Court was the so-called “disparate fault” theory of common law indemnity.  In general, a party who is at fault for an injury is not entitled to common law indemnity from another negligent party.  However, under the “disparate fault” theory, a party whose negligence in connection with a particular injury is relatively small as compared to that of another party may seek indemnification from the party who is disproportionately at fault for the same injury.

The opinion of Justice Katzmann, who wrote for the panel of three justices, stated “[a]lthough the Supreme Judicial Court has adverted to the differing degree of fault theory in two modern decisions, see Rahthbun, Western Mass. Elec. Co., 395 Mass. 361 (1985), and Economy Engr. Co. v. Commonwealth, 413 Mass. 791 (1992), in neither case was indemnification allowed. Moreover, a review of the cases cited in Rathbun reveals only one case, more than a century ago — before the existence of statutory contribution and workers’ compensation — in which the court allowed indemnification to one of two joint tortfeasors based on differing degrees of fault.”  The Appeals Court, instead, applied the general rule that a party who is at fault for an injury is not entitled to common law indemnity and upheld the dismissal of the claims of the manufacturer.

In so ruling, the Appeals Court determined that the plaintiff manufacturer was not entitled to a new trial to ascertain whether or not its negligence was of the small amount contemplated by the “differing fault” theory of common law indemnity.  The Appeals Court also ruled that no common law indemnity obligation could be inferred from the buyer-manufacturer relationship of the parties, and that the contractual indemnity claims of the manufacturer also failed as a matter of law.
Pierce & Mandell has broad experience in the most sophisticated insurance defense, catastrophic injury and construction related litigation, and we routinely handle high value trials and appeals where cutting edge legal issues in these fields are determined.

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