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

Recent Changes to Superior Court Rule 9A

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

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.




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