Boston Accident Lawyer Blog

Whether it’s Big Finance, Big Insurance, Big Tobacco or Big Pharma, overall, Big Business never seems to “get it” when it comes to acting ethically and obeying the laws they’re required to operate under in this country. This time the focus is on Big Pharma, though that’s nothing new.

Pfizer, Inc., that giant of the pharmaceutical industry, was found by a jury in U.S. District Court in Boston last week, with violating the federal Racketeer Influenced and Corrupt Organization Act (RICO,) a law designed to thwart and punish a variety of illegal activities dealing with financial transactions. Oddly enough, (or not so oddly,) RICO was first passed by the U.S. Congress in response to organized crime’s (read: The mob’s) activities in transferring and hiding financial transactions across state lines. Now, Pfizer’s been found to have violated the Act.

What was Pfizer up to? It seems that for the past ten years, Pfizer embarked on a targeted campaign to promote their epilepsy drug, Neurontin, for officially unapproved uses. Kaiser Foundation Health Plans, Inc., and Kaiser Foundation Hospitals, alleged that over the course of ten years, Pfizer consistently promoted Neurontin to it for unapproved uses, representing to its doctors that Neurontin could effectively treat a number of different medical conditions, including migraines and bipolar disorder. Neurontin was approved by the FDA in 1993 to treat epilepsy, and nothing more. According to Tom Sobol, a lawyer for Kaiser ,”The jury found that Pfizer engaged in a racketeering conspiracy over a ten-year period. That bodes well for future (similar) cases.” The jury deliberated for two days before finding Pfizer guilty of violating RICO. They determined the damages owed Kaiser to be $47 million, but under RICO, the damages are tripled. Hence, the total cost to Pfizer is $142 million. The federal trial was based in Boston, as U.S. District Court Judge Patti Saris is charged with overseeing a number of federal lawsuits from across the United States, targeting Pfizer with personal injury claims and allegations of fraudulent marketing of this drug. These injury claims would take the form of Product Liability suits, rather than Medical Malpractice.

When will Big Business get it? When will they cease their relentless quest for profits, no matter what the cost to society at large, or to themselves? Do they never learn from the shameless corporate fools that went before them? The terms “Ford Pinto”, “Asbestosis”, “Predatory Mortgages”, “Tobacco Cancer” and “Corporate Greed” all ring loudly. Does it not shame the leadership of this global company that they have been found guilty under a statute originally passed to police and defeat organized crime?

And remember, readers:: It’s these very kinds of companies and industries that want “tort reform” -- Big Business. They'd just love to shrink your legal rights and expand their profits. Don’t let them do it.

Following my previous posts on this subject, comprising Part One and Part Two, let’s now get to the legal decision rendered by a Massachusetts Superior Court judge in the suit filed by Nicholas Parsons and his parents against the Town of Tewksbury, Parsons, et. al, vs. Town of Tewksbury, et. al.., Middlesex Superior Court Civil Action No. 09-1595.

The plaintiffs here brought three claims before the court: 1) A negligence claim, in tort, against school officials and the Town, alleging that school officials knew or should have known that the harm that young Parsons suffered was likely to occur; 2) A claim, also in tort, known as “Intentional Infliction of Emotional Distress.” This claim alleges intentional conduct by a defendant which causes extreme emotional distress to a victim. In law school classes this particular tort is known as “The Tort of Outrage”, in that it seeks to hold someone civilly liable for emotional harm resulting from intentional acts that a reasonable person would find to be “outrageous”, or conduct that “shocks the conscience” of a reasonable person. 3) A constitutional claim, alleging that the inaction of school officials to protect the Parsons boy from obvious harm amounted to a violation of his due process rights (specifically, to safety and protection) under the Declarations of Rights contained within the Massachusetts Constitution.

As I said in my previous two posts on this case, an attorney’s view of this decision will depend almost entirely on whether that attorney practices as a plaintiffs’ or defense counsel. Everyone who knows me, knows that when it comes to the civil side of my practice, I am a plaintiffs’ lawyer. I represent people who have been injured and harmed as the result of someone else’s negligence. That being the case, I find this judge’s decision to be seriously lacking in legal reasoning on at least two of the three claims presented in this case. While the decision offers a small, and nascent, basis for optimism that school officials will in the future face greater liability for the safety of students in their charge, on the whole it is shocking in its ignorance of the outrageous acts of not one, but several school officials who failed to act to protect this boy from violent assailants – regardless of their ages.

Before I articulate my reasons for that position, the judge here, judge Kenneth Fishman of the Massachusetts Superior Court, did rule correctly as a matter of law on the plaintiffs’ claim that school officials knew or should have known that the harm that young Parsons suffered was likely to occur, and that they were negligent in failing to prevent that harm. The judge dismissed this count of the plaintiffs’ suit, and he did so correctly as a matter of statutory construction. The reason is that there is a fairly well-known statute (among lawyers, that is,) called the Massachusetts Tort Claims Act (“MTCA”,) which was created by the state Legislature to shield municipalities from being liable for many forms of ordinary negligence. This Act gives what is called “sovereign immunity” to cities and towns in Massachusetts, meaning they cannot be held liable for harm someone by suffered, unless it can be shown that the officials involved acted affirmatively (deliberately) to create the situation that caused the harm. (In this case, for example, the plaintiffs would have had to show that school officials actually asked or encouraged the bullies involved, to harm the victim. Not relevant.) The judge here correctly found that the MTCA and the sovereign immunity it provides, barred the plaintiffs any recovery on this first count.

However, as to the plaintiffs’ next two claims, the judge erred gravely, in my legal opinion. On the second of the plaintiffs’ counts, alleging intentional infliction of emotional distress, I cannot see how, under the facts present in this case, the judge could have dismissed this count. As I noted above, to recover on this count, a plaintiff must show that the defendants’ conduct was as matter of law, extreme and outrageous. How evidence showing that multiple school officials knew what was going on with the violence in this school directed at this boy - which resulted in his being beaten so badly that his leg was broken - and none of them did anything to prevent or stop it, does not constitute “extreme or outrageous” conduct, I do not understand. I say this as an attorney and legal analyst & commentator. The farthest this judge would go here, in characterizing this shocking negligence by teachers and school administrators alike was that the defendants “may have mishandled and underestimated the seriousness of the situation” brewing in this school. However, he found that, as a matter of law, school officials’ conduct was not “extreme or outrageous”.

Concerning the plaintiffs’ last count, their constitutional claim that young Parsons’ rights to due process (to protection and safety in school,) under the Declaration of Rights within the Massachusetts Constitution, were violated, he rejected this third and final claim, also.
Seeking legal authority to support his reasoning, the judge reached into federal law to borrow and apply a legal concept which says that, in order to recover on this constitutional count, Parsons would have to show that the school officials' conduct rose to a level extreme enough to “shock the conscience” – and that the actions of school officials here did not rise to a level extreme enough to "shock the conscience." That reasoning itself shocks my conscience.

• Multiple school officials knew this boy’s safety – possibly his life – were at risk – and did nothing.
• Parsons’ mother had personally appealed to school officials to do something to stop the escalating violence of these bullies and protect her son. They did little to nothing
• “Behavior Management Facilitator” Robert Ware knew of the escalating violence against this boy, even himself witnessing the boy being victimized, and did nothing.
• Parsons’ English teacher was told by students that the reason why Parson and Willett were absent her class, was because a fight had been scheduled between the youths in the boys’ bathroom – and did nothing.
• “Guidance Counselor" Adam Colantuoni knew of this planned fight – he was observed monitoring a boys' bathroom on the day of the fight, and yet neither he nor Robert Ware reportedly took any actions to prevent the fight.
• When Robert Ware arrived at the nurse's office, and found Parsons wounded with a broken leg and crying, his response (as recounted in the plaintiff’s complaint) was to swear at the young boy, telling him to "walk it off" and to follow him out of the nurse’s office. Thankfully, the nurse intervened, demanding that Parsons be placed in a wheelchair, summoning an ambulance immediately.

In the face of all the above, this judge found that the sum of this shocking conduct, was not “extreme or outrageous” enough to allow relief under Parsons’ constitutional claim. Note to Judge Fishman: It’s legal reasoning like this that makes people argue that judges be elected (a concept I don’t agree with, but decisions like this feed that idea.)

Notwithstanding the judge’s dismissal of this last (constitutional) count, after he rejected it in the instant case, he did state that, "as a general proposition, a cause of action can, in certain circumstances, be brought directly under the ... Declaration of Rights in the absence of a statutory vehicle for obtaining relief." It is here where some legal observers find hope that future cases like this might be decided differently. Recognizing that state or municipal officials could, “potentially.” violate the state constitution without engaging in affirmative threats or intimidation themselves - Fishman determined that such a constitutional claim was viable "as a general proposition." In my view, the judge largely waxed philosophic, but perhaps there is cause for some hope. Optimists are viewing this Superior Court ruling as a suggestion that public school officials might have a duty under the Massachusetts state constitution to protect students from bullying, thus potentially creating an avenue of liability that to date has been seen as legally impossible in the absence of a specific statutory remedy.

I suppose one could view this decision in that optimistic light – a nascent step in the slow process of allowing for liability in these school cases under the state constitution. Hopefully, it can be seen as some small measure of hope that students who are subjected to violence in school can indeed hold liable – and recover compensation from - the very school officials whose duty it is to safeguard them.

However, that won’t do much for Nicholas Parsons or his family now. My thoughts to them, and my admiration for trying.

P.S.: As of the date of this post, the anti-bullying bill under consideration by the Massachusetts Legislature, was, thankfully, passed with its original provisions of mandatory training for school staff and reporting of bullying incidents. This past Thursday morning, March 18, these key provisions had been removed by the House Ways and Means Committee, headed by Rep.Charlie Murphy, of Burlington. It appears that Murphy had temporarily buckled to a behind-the-scenes lobbying campaign by the Massachusetts Association of School Superintendents, and others, who (God forbid,) shuddered at the idea that they should be held to higher standards of professionalism and accountability in this area. Later that same day, these key provisions had been inserted back into the bill after Ways and Means Committee members and other House members gave Murphy an earful. Another important post-script: A great deal of the progress made in this important area of public policy is owed to a journalist who stood up publicly on several occasions, to raise awareness of this problem: Kevin Cullen, columnist with The Boston Globe. He deserves thanks from anyone and everyone who has felt the impact of this issue, from the parents of suicide victims Phoebe Prince and Carl Walker, to those who are unknown.

In my previous post on this subject (apologies that I haven’t followed it up earlier,) I discussed the ongoing tragedy of bullying in schools, and of how the most recent victim was a young girl in South Hadley by the name of Phoebe Prince, who committed suicide after repeated abuse by a group of girls at South Hadley High School. I also discussed how, up until perhaps now, there has been almost no statutory vehicle in Massachusetts to attach civil liability to school administrators or personnel – public or private – for injuries and harm done to children bullied at school. A recent Massachusetts Superior Court decision may – just may – have opened the door to legal changes much needed in this area of civil justice.

The case, Parsons, et. al., vs. Town of Tewksbury, et. al., involved a Tewksbury Middle School student and his parents who sued the Town of Tewksbury and school personnel for negligence, and other counts, in not intervening to protect this student from repeated bullying by other classmates at the school. The case reveals a shocking level of violence inflicted against the young student, and even more shocking negligence in the form of inaction by school personnel to intervene and protect this young boy from savage abuse at the hands of other students. The facts are truly horrific. I trust that my readers are familiar with the term “Dumbing Down”, to describe how people are in general nowhere near as well educated in this country as they were in decades past (and if anyone has any doubts about that, just watch one of Jay Leno’s famous “Jay Walking” pieces, where he asks average Americans questions about the most basic subjects, and 99% don’t have a clue as to the answers.) While stories like this case from Tewksbury must be told, I believe that in the process they can create a “Numbing Down” in people: The effect is that, horrific as a story like this is, it fails to provoke outrage or shock in people. The reason: Violence and indifference is so increasingly widespread in our culture. Too many people read of horrific stories like this, and just turn the page. I hope that won’t happen here. I wish to also say that, while some lawyers see hope in this decision, as a Boston injury attorney, I find this decision disappointingly weak. It’s my legal opinion that this judge should have found liability against the town and the school in this case (which he did not,) and that he should have issued much stronger language.

The case begins in April 2006 with young Nicholas Parsons, a student at Tewksbury’s Wynn Middle School, who was being repeatedly assaulted and battered by a group of other students at this school. Young Parsons reportedly had fallen out of friendship with a group of male students who made it a practice of harassing and threatening weaker students. Parsons told the school guidance counselor, Adam Colantuoni (who was also named as one of the defendants in the suit,) that these bullies had been harassing him repeatedly. The plaintiffs’ suit alleges that Colantuoni took little to no action to halt the assaults. Not long after Parsons had reported the problem to Colantuoni (the school’s “guidance counselor”,) the leader of the bullying group, a student by the name of Tyler Willette, ordered another student to slam Parsons' head with a book. Not only did this other student carry out this order, he did it in the presence of a teacher, who sent the attacking student to the school's "behavior management facilitator," a man by the name of Robert Ware (who was also a named defendant in this suit.) By all credible accounts, Ware neglected to discipline the assaulting student, instead merely ordering the boys to apologize to each other. In the event you’re wondering where this gets worse, read on.

When Parsons’ mother learned of this inaction by Robert Ware to in any way discipline the student who attacked her son, she called the school to complain. The result: Shockingly, the school took no action to discipline this student or take any other measures to stem this violent behavior. During the school’s April vacation break, Tyler Willette (the bullying leader, who originally ordered another student to hit Parsons in the head with a book,) reportedly tried to start two fistfights with Parsons near his home, and then tried to provoke an additional fight upon their return to school. Initially, Parsons declined to fight, but after another teacher (this time, a gym teacher,) failed to discipline Willette for violently charging Parsons in a gym class, Parsons decided he had no choice but to take corrective and defensive action on his own. Reluctantly, he agreed to face Willette in a ‘scheduled’ fight, in the hope that doing so would stop future harassment. News of the fight, set to take place on April 26 2006 inside a boys' bathroom, spread among the student body, as also did a threat by Willette, that he would break Parsons' leg with a karate strike. It gets worse: Even though both Robert Ware and Adam Colantuoni were observed monitoring a boys' bathroom on the day of the fight, (an activity that neither man typically engaged in, and which was evidence that both men knew this fight was going to take place,) neither man reportedly undertook any effort to intervene in the fight. If this inaction doesn't shock the conscience, it gets worse still: Both boys' English teacher, after learning from other students that the two boys were absent from class because of the fight taking place during that class period, did nothing to alert school administrators. At this point in this situation, that now numbered four (4) adult school administrators - all "trained professionals" receiving salaries and benefits - who did absolutely nothing to stop this escalating cycle of violence.

Yes, by all credible accounts, what you’re reading is all true.

In the boys’ bathroom, Willette attacked Parsons, shoving him, then kicking him in the legs with special katate moves as he had threatened to do, in the process fracturing Parsons' femur. Then, as Parsons lay on the floor with a broken leg, Willette punched him in the head twice. With Parsons crying out in pain, in a show of ‘mercy’, Willette and a friend then reportedly took Parsons to the school nurse. When Robert Ware (the school's "behavior management facilitator”, if you can believe that,) arrived at the nurse's office, Parsons, who had been crying, was unable to lift his swollen leg below the knee. Ware’s response (as recounted in the plaintiff’s complaint): He swore at young Parsons, telling him to "walk it off" and to follow him out of the nurse’s office. The nurse intervened, demanding that Ware be placed in a wheelchair, and she summoned an ambulance to transport Parsons immediately to the hospital.

Willette’s punishment for this aggravated assault and battery? Nothing but a brief suspension - a slap on the wrist. Robert Ware’s and Adam Colantuoni’s punishment for their shocking negligence and reckless indifference to this situation? Nothing of any consequence. They're still on the job, collecting their salaries. Nicholas Parsons? He suffered multiple surgeries and hospital stays as the result of his injuries, and suffered enormous emotional trauma. He'll carry those injuries the rest of his life.

Parsons and his parents subsequently sued the town, Ware and Colantuoni in Superior Court for negligence, intentional infliction of emotional distress and violations of the Massachusetts Declaration of Rights.

I’ll discuss the legal analysis and result that the court arrived at, and why I think it’s more of a disappointment than anything else, in my next post. In the meantime, let your anger and disgust over this story fuel you to put your school administrators – public and private – on notice that you’re not going to tolerate this reckless disregard for the safety of students, in your community. Otherwise, I have some news for you: It won't stop.