Boston Accident Lawyer Blog

In a case that one can only hope will produce civil justice (vs. the criminal justice that's already been obtained,) the parents of a 16-year-old Massachusetts murder victim have filed a $1 million lawsuit against her killer and his mother.

Joshua C. Whitaker, 23, was sentenced to life in the maximum security prison in Shirley, Massachusetts, after being convicted of the grisly murder of Kelsea L. Owens, who was murdered in Hampden, Massachusetts on August 15 2006. At his trial, Whitaker’s defense lawyer admitted to jurors that Whitaker bludgeoned Owens with pruning shears, a log and a set of dumbbells. Whitaker admitted to a paramedic: "I'm a murderer." Testimony at the defendant’s murder trial established that Whitaker’s mother, Linda Whitaker, is the person who initially called police to report "a girl being assaulted and missing."

Now, a wrongful death lawsuit has been filed in Hampden Superior Court against the Whitakers. The suit alleges that Joshua Whitaker had a "long history of violent and deviant behavior," and centrally, claims that Whitaker’s mother, who he lived with, Linda Whitaker, knew or should have known about her son's violent personality, and undertaken efforts or measures to monitor or control it. The Owens' lawsuit alleges that Joshua Whitaker had previously been undergoing psychiatric treatment for violent tendencies, that his mother Linda Whitaker knew this, that she was at home at the time of the murder, and that she should have known her son had not been complying with his psychiatric treatment and medication regimen for a considerable period of time prior to the murder. In legal parlance, the suit alleges that "Linda Whitaker negligently and carelessly failed to properly monitor, supervise and observe Joshua Whitaker, who she knew ... had a history of violent and deviant behavior.” The complaint also accuses the Whitakers of "conscious pain and suffering" and infliction of emotional distress.

I’ve previously written about relatives of murder victims filing wrongful death lawsuits against persons who have been accused – but not yet convicted – of the murder of their loved one. A recent example of this in Massachusetts was the Richard Stryker case, in which the family of Dr. Linda Goudey sued another doctor, Dr. Richard Stryker, for murdering her in 1993. The family won that civil suit, and secured a $15 million judgment against Stryker. To secure payment of that jury verdict, I am sure the family attached all the assets in Stryker’s name that they possibly could – and as a physician, Stryker had the means to make payment, even if not in one lump sum. Illustrating the impact of such wrongful death jury verdicts, Stryker was later charged and convicted in 2008 of hatching an elaborate scheme to produce a “new witness” who he tried to use to obtain a new trial on that civil judgment, in the hopes of reversing the judgment and freeing himself from the prior $15 million awarded to her family. Stryker sits in a jail cell now, convicted not of Linda Goudey’s murder, but of the scheme to defraud the court in attempting to procure a new trial on the wrongful death verdict. When he’s released from prison, he’ll still have that unsatisfied (unpaid) judgment on his back, with interest accrued – and everyone involved can feel good about that.

However, the Stryker case, and its famous forbearer, the OJ Simpson wrongful death suit, both involved defendants that had considerable present financial assets, or possible future financial assets, to pay those judgments. I don’t see any such parallel here, in the civil suit against Joshua Whitaker. He’s about 21 years old, and in all likelihood, doesn’t have and never will have a dime to his name. That’s a further frustration for the family of Kelsea Owens, but it illustrates the central focus of wrongful death suits, and that is to financially punish the defendant for his, her or their acts in causing the death of the plaintiff’s loved one. Assuming an optimistic outcome for this family, and assuming they secure the $1 million judgment they seek, it’s doubtful they will ever receive any substantial money.

However, here’s a critical key: The Owens family appears to be basing its suit against the Whitakers on a negligence theory. The suit is basically saying that Linda Whitaker was negligent in not monitoring her son’s medication to control his violent and deviant behavior. Because this is a negligence claim, any homeowners’ policy that Linda Whitaker may have had at the time, may be accessible to pay any judgment awarded. If the Owens family obtains a financial judgment but there is no liability insurance policy available, they could attach her real estate and personal assets, and force the sale of those assets to satisfy part or all of the judgment. But those assets would need to be worth a considerable amount of money to cover the $1 million this suits demands. Unless they can access some type of very valuable assets in the defendant’s name or his mother’s name, or access a homeowners’ liability policy held by him or his mother, collecting on any eventual judgment is going to be a challenge.

This point illustrates the reality that almost all civil litigation that seeks compensation for personal injuries or the death of a loved one, needs to first identify some type of financial assets that can be accessed to pay any eventual judgment. Most of the time, a policy of liability insurance is involved, but other assets can be attached also. Remember, anyone can be sued for negligence, for any kind of injuries or loss that someone has sustained. If you or someone you know needs to consult with an attorney about negligence and liability issues, please call my office anytime.

In my previous posts on this multi-part subject of tort reform, I discussed what tort reform is, who is behind it, and what it would do to the average Massachusetts citizen, in taking away your legal right to recover for injuries you’ve suffered because of someone else’s negligence.

Now I’ll address the twisted story of what the insurance industry uses as ‘Exhibit A’ when they argue for tort reform: The famous “McDonald’s Coffee Case”. You’ll see that what this case is really “Exhibit A” for, is not telling the full story or reporting all the facts, which results in complete disinformation. (Otherwise known as “spin.”)

This is the case of Liebeck vs. McDonald’s Corp. Stella Leibeck was a 79 year-old grandmother in New Mexico, who suffered third degree burns over her legs and lower abdomen after she purchased coffee at a McDonald’s drive-through, back in 1992. Liebeck sued McDonald’s for producing coffee that was so hot it couldn’t be handled safely, never mind actually consumed safely. This type of case is known as a Product Liability suit. A jury awarded her $160,000 in damages, which reflected their determination that Ms. Liebeck was 20 per cent at fault for the accident (she spilled the coffee on herself.)

These next two points that follow are extremely important:

1) The jury also awarded her $2.7 million in punitive damages against McDonalds – because the jury found shocking evidence that McDonalds Corp. had previously received more than 700 complaints about coffee-related burns in the ten years that preceded Ms. Liebeck’s injuries – and yet chose to do nothing to correct their system of coffee making, because it would have cost the company ‘too much money’ to change their standardized system of brewing coffee through their thousands of franchises across the United States. Think about that: Can you imagine what 700 separate letters look like – all complaining and warning of the same problem – coffee so hot it was causing horrific burns – and yet McDonalds made a “cost-benefit” decision to do nothing to correct the problem! This is exactly the kind of decision that Ford Motor Company became famous for, with the old "Pinto" bumpers causing gas tank explosions at low-speed impacts. Once again: Corporate profts at the expense of human safety.

2) After the verdict, the media reported that a New Mexico jury had awarded Mrs. Liebeck nearly $3 million in compensatory and punitive damages for her burn-related injuries. But what the media didn’t report was that the trial judge reduced the $2.7 million punitive damage award by more than 82 percent! This point illustrates two other key points in the tort reform debate: One, the safeguards that are built into the civil liability (tort) system, which tort reform advocates don’t tell you about: A jury can award what it feels is appropriate, but the trial judge has the power to reduce (or enlarge) a jury award, in the interests of justice. And two: The distortions that tort reform advocates regularly engage in – telling people only half the story – the half that suits their purposes.

And the McDonalds Case” doesn’t end there. There are a few more critical facts I can almost guarantee you, that you’ve never heard about, with this story:

1) McDonald’s rejected a pre-trial settlement demand of a mere $20,000 by Mrs. Liebeck’s attorney. (As a Massachusetts personal injury lawyer, I think $20,000 as payment for suffering third-degree burns over your abdomen, lap and legs is more than reasonable, given the above evidence that was discovered.) McDonalds rejected this settlement offer despite the fact that Mrs. Liebeck was hospitalized for eight days of in-patient hospitalization and required multiple skin grafts due to the burns she suffered;
2) McDonald’s was fully aware that liquids served above 140 degrees caused serious burns upon skin contact, but refused to change the standardized practice, because changing a nationwide system would cost ‘some money’.
3) Despite numerous media reports, Mrs. Liebeck was not the driver at the time she was injured, but was passenger in her grandson’s car.

So, as the late broadcaster Paul Harvey used to day, now you know ‘The Rest Of The Story.” Tell your friends this, and remember it the next time you hear the words “outrageous jury verdicts”, “lawsuit crisis” and “tort reform.” Because a lot is at stake in this debate – namely, your right to go to court and recover damages if you’re injured. And trsut me, a Boston injury lawyer, I can assure you: that’s no small order.

In my previous post on this topic – “tort reform” – I explained how and where the misinformation campaign of tort reform was developed: the liability insurance industry. I also explained that this campaign has been so successful, that a national bar association that has existed for over 60 years, the Association of Trial Lawyers of America (ATLA,) apparently felt that the public perception of plaintiffs’ trial lawyers had been so damaged by this misinformation campaign, and public opinion of trial lawyers had sunk so low as a result, that it actually decided to change its name to the “American Association for Justice” (AAJ.) If you click on the link for AAJ, you will notice that the Home Page lists the AAJ as “Formerly the Association of Trial Lawyers of America (ATLA,) due to the insistence of many trial lawyers who are proud of ATLA's name.

The campaign for tort reform has taken a thousand stories of the civil jury system, and twisted them like a pretzel to portray a civil liability system that is “out of control”, awarding “outrageous jury verdicts” to “questionable plaintiffs”. All of this, of course, reflects the main objective of the insurance industry’s campaign, which is to frighten people into believing that their liability insurance premiums – whether for automobile insurance, homeowners’ insurance, medical malpractice coverage, municipal liability, corporate liability or any kind of liability insurance offered in this country – are high because of a “lawsuit crisis”, caused by “greedy tort lawyers." Why does the liability insurance industry want to do this? Why are they spending tens of millions of policyholders’ dollars to create public pressure to pass tort reform legislation wherever they can?

A simple one-word answer, and I know you’ve all heard it before: Money. You see, (here's a link to a good book explaining this,) “tort reform” basically dismantles the civil jury system – the system that decides whether a person or company is liable for someone else’s injuries, and if so how much should be paid to compensate the victim of those injuries. What this “reform” does, is take away your legal rights to sue a defendant in court for your injuries, such as a car accident, a dog bite, or a slip and fall injury. And if “reform” passes? If you’re still lucky enough to be able to file a suit against someone who has injured you, the damages that you would have received earlier (before “reform”) would be capped, or limited to a maximum amount. And if that amount is not enough to compensate you for perhaps lifelong injuries you might have suffered, such as in a medical malpractice case or nursing home neglect or abuse case? Tough. You'd be out of legal options, out of luck, and out of money.

Now you see why the insurance industry is behind “tort reform”: These drastic changes to our 200-plus year-old civil jury system quietly take away your legal recovery rights, limit what insurance companies have to pay for the negligence of their customers, and pad the industry’s profits even more than they are now. Remember: The insurance companies who are behind this campaign are the same types of companies like AIG, which was responsible for a major part of the economic collapse of 2008, and who have taken billions of dollars in bailouts at taxpayers’ expense. Now they want to go further, and take away Americans’ legal recovery rights in court.

To convince voters and legislators of the “need” to pass tort reform legislation at the federal and state level, a million half-truths and outright lies have been rolled out in the process. But the all-time “Granddaddy”, the all-time winner in this distorted media campaign, has to be “The McDonald’s Lawsuit.” I’ll bet you’ve all heard it: About how a woman who spilled hot coffee on her lap, was awarded “millions of dollars” by a “runaway jury”. This story is 'Exhibit A' in the insurance industry’s excuse about why they’ve had to gouge their policyholders with sky-high premiums (which supposedly causes businesses to shut down, which supposedly causes all kinds of subsidiary problems.) And who do the insurers say is to blame? Trial lawyers, who have created a “Lawsuit Crisis”.

As a Boston personal injury attorney, I can assure you this story is completely false. What makes it false: The same thing that usually makes a truth a lie: Omitting critical information which tells the real truth. So now that you’ve heard their story, prepare yourself for the real story – in my next and last post on this topic.

Before I started practicing law twenty years ago as a Massachusetts personal injury lawyer, I worked as Public Affairs Counsel (lobbyist) and Media Spokesperson for the Massachusetts Academy of Trial Attorneys. MATA is the state bar association for plaintiffs’ personal injury lawyers (lawyers who represent injury victims who have been harmed due to someone else’s negligence,) and is the state affiliate of the American Association for Justice. Here is where this story gets a little interesting: The AAJ used to be known for many, many years as the “American Association of Trial Lawyers of America” – ATLA – but several years ago, they changed their name to the “American Association for Justice”, after decades of being widely known as ATLA. Care to take a guess why the name change?

My readers who follow the issue of tort reform will know the answer. And that answer, quite sadly, is this: Polls and study groups had indicated that the public image of plaintiffs’ trial lawyers (or tort lawyers,) had sunk so low in the public’s mind, that ATLA felt that they needed to take the words “trial lawyers” out of their name. (A disclaimer: I do not speak here for the AAJ, and I do not know for an indisputable “fact” that this was the reason the association changed its name, but most plaintiffs’ trial lawyers would privately tell you, that was the reason.) And prey tell, why had the public’s perception and public opinion of trial lawyers reportedly sunk so low as to prompt this name change? Is what the members of my profession do so un-admired, so low, that a national bar association would want to change its name to take out the words “trial lawyers”? Is what we as trial lawyers do in helping injury victims recover a fair measure of compensation and justice from the negligent party who caused their injuries so shameful, so disreputable? Is fighting insurance companies who would be only too glad to offer someone who has been injured, crumbs for financial compensation, so distasteful?

The answer to all these questions is, obviously, a resounding "No." So why, then, has the perception of a once-admired and esteemed profession been so defamed, so damaged? The answer comes down to three words: liability insurance companies. More accurately, two words: tort reform. You see, for almost every damages award or settlement that is paid in a personal injury or tort case, there is an insurance company that pays that award or settlement amount on behalf of the defendant that is found to be responsible (legally liable) for those damages. Whether the case involves a Massachusetts motor vehicle accident, a premises liability, or a medical malpractice case, 99% of the time, an insurance company – who has been paid premiums by the defendant (its policyholder) to provide that very coverage – pays the award or settlement. And guess what? Despite the fact that liability insurance companies are in business to do just that – pay for damages when their insured negligently harms someone – they don’t like paying out money. Of course, these are the very companies, like AIG, that took billions and billions of taxpayers’ dollars in bailout money.

So, what do you when you’re the liability insurance industry (comprised of companies like AIG,) and you don’t like paying for the negligent acts of your customers? Well, one way is to adopt an aggressive trial approach and combative legal strategy toward every personal injury claim that comes before you, and refuse to pay almost anything but the smallest sum, but that’s a piecemeal approach. No, the liability insurance industry knew that a much larger-scale attack would be needed to pad their profits even more – a strategy that wouldn’t just address cases on an individual basis – but on a societal, national level.

Enter the concept and campaign for “tort reform”. What’s that? A coordinated, sophisticated, public relations misinformation campaign, specifically designed to convince all manner of people and business sectors that the reason their insurance premiums are so high, is “frivolous lawsuits”, “runaway jury verdicts” and “greedy tort lawyers.” The objective: Stoke public anger toward tort lawyers. Make every car & motor vehicle owner, every home owner, every municipality, every doctor, every hospital, every charity, every business from a mom-and-pop store to Microsoft Corporation, think that their high insurance premiums are due to a “lawsuit crisis.” Bring this misinformation and smear campaign to such a fever pitch that even the mention of the words “trial lawyer” will prompt resentment and distaste.

And that’s why such a distinguished bar association like ATLA, apparently felt it was forced to change its name, taking out the words “trial lawyers.”

As a Massachusetts personal injury lawyer who used to specialize in responding to the media about this misinformation, I can assure you that this campaign has been, and continues to be, one of the biggest lies perpetrated on the American public in decades, and I’ll discuss 'Exhibit A' in that evidence file, in my next post.

Continue reading " Personal Injury Cases in Massachusetts, and Elsewhere: Lies and The Truth: Part 1 of 3 " »