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First, let me say to my readers that I’m sorry that I haven’t posted here in a while. I was extremely busy with cases in the first three weeks of December, then went on an extended Christmas & New Year’s holiday shortly thereafter.

Besides that, however, there was another important matter distracting my time: I’ve spent the last couple of months re-designing and re-formatting my website, www.attorneywdkickham.com.

By later this week, it will be complete, and I invite you to take a look at it. While it will contain the same valuable information on Massachusetts personal injury law that it always did, it will feature new and valuable information on a variety of tort and injury topics.

Someone made a film in the recent past, about a couple that was accidentally left stranded on a ski lift, high above a mountain. Slowly freezing to death and unable to jump from the chair height, the couple faces a harrowing ordeal.

Something not too far from that happened just a few days ago here in New England,at Sugarloaf Mountain in Maine. A chairlift at the state’s tallest ski mountain derailed December 28, injuring eight people who plummeted 25 feet to the mountain below, and stranded almost 150 others for a few tense, and very cold, hours before they were rescued. Winds gusted as high as 25 miles per hour while rescue workers attempted to reach the stranded skiers. The eight skiers who were injured were transported to Franklin Memorial Hospital in Farmington, Maine. A spokesman for the ski resort said none of the injuries were considered life-threatening.

Initial reports indicate that a rope within the Spillway East chairlift, one of 15 chairlifts on the mountain, somehow derailed from the lift’s eighth tower about 10:30 a.m. As the rope loosened, about five chairs slammed on the snow-covered ground, while the rest remained suspended in the air, he said. The 150 or so stranded skiers were hoisted down from the damaged lift by the ski patrol, using a pulley system.

It’s January. It’s snowing. It’s Massachusetts. Add it up, and you’ve got plenty of skiers here. As just as much as going to the beach in summer is popular here, so is skiing in winter. Though not all skiing is downhill (vs. cross-country,) most is – and without a doubt, most of the injuries that result from skiing, involve the downhill variety.

Downhill skiing is dangerous business. Anyone who’s ever done it, can attest to this. Even the least challenging “Bunny Trails,” can pose significant risk to a skier – whether novice or experienced. Witness the death last year of Natasha Richardson, Liam Neeson’s late wife. She was on skis, but barely moving, and fell down, striking her head against an icy surface. She died from a subdural hematoma that resulted from the impact. True, most ski injuries result from moderate to high-speed collisions, but this tragic event illustrates the point: Skiing is very dangerous.

With that reality in mind, and considering the number of persons who frequent commercial ski resort operators in this state every winter (hundreds of thousands) you’d think that there would be a lot of injuries each year, and a lot of lawsuits against ski operators. You’d be right as to the first, wrong as to the second. Why? Because the ski resort industry, both nationally and in Massachusetts, is very powerful. A multi-billion dollar industry, the ski resort industry has successfully exerted their influence in both the Massachusetts state legislature, and in the courts, to limit their liability for injuries occurring at their facilities. The result, historically, has been a very hostile environment for plaintiffs seeking to hold commercial ski resorts liable for injuries that occur as a result of their negligence. In the past 20 years, successfully bringing such a suit, never mind winning one, has been a daunting legal task. The reasons have been due to a combination of very strict legislative enactments pushed into law by the ski resort industry, as well as judicial rulings that have been very hostile to plaintiffs.

In my last post, I discussed the importance of a jury being able to see the amount of medical bills that were generated to pay for a plaintiff’s medical care – vs. the amount of discounted medical bills actually paid by a health insurer (as part, of course, of a suit alleging injuries caused by a defendant’s negligence). At trial in July 2006, in the case I blogged about previously, the defendant (Griffith) argued that because the plaintiff (Law) did not have to pay the full $112,269 that was billed for her care by her medical providers, only the lower, discounted figure that was actually paid by her health insurer – $16,387.14 – should be shown to the jury for the purpose of their assessing any damages. In that Superior Court case, the judge in that case agreed with the defendant – a highly unusual ruling, given state precedent in these cases. The result: The jury was only allowed to see the $16,387.14 figure. And the result of that? The jury awarded this plaintiff – who suffered substantial injuries which generated over $112,000.00 in medical bills – only $48,500. Undaunted, the plaintiff appealed this judge’s ruling to the Massachusetts Appeals Court, and that court ruled that the Superior Court judge erred on the medical bills issue, and ordered a new trial. Not to be outdone, the defendant then petitioned the Massachusetts Supreme Judicial Court (SJC) for a final answer, and that is where the case sits now. How’s that for some “legal tennis?” Not uncommon.

As a Boston injury lawyer, I can assure you that the stakes behind this case are enormous: Juries are not “experts,” or vocational economists, in case valuation. When assessing damages that they might wish to award a plaintiff for personal (physical) injuries, they rely on the amount of the medical bills put before them. If they see a total figure that is relatively small (i.e., the amount of medical expenses actually paid,) as opposed to a much higher figure (i.e., the amount of medical expenses billed,) they will intentionally reduce the amount of any award they render. That is only common sense. Think of it this way: Assume you or someone you love is seriously injured due to someone else’s negligence – it could be a car accident, a slip-and-fall injury, or any variety of injuries. Assume that the medical expenses involved in the treatment of these injuries amount to $100,000. That figure reflects a number of things, but most importantly, it reflects and illustrates the severity of the injuries suffered. This is key for any jury reviewing the matter, later – when all the physical results of those injuries are not always visible to the eye. Assume that the plaintiff’s health insurer negotiated with the medical providers, to pay 20 cents on the dollar – a total of $20,000. Now, assume that instead of the jury being allowed to see these $100,000 in medical expenses, they are only allowed to see only what the insurance company actually paid – $20,000.

Do you think such a jury would view your injuries as being as severe as they actually were, if it sees medical expenses of only $20,000? It won’t. Appearances are everything to juries; they are comprised of human beings, and as my late father used to caution me, “You cannot remove the human element” in any trial. It’s unavoidable.

I have a favorite saying (which my wife Debbi would readily tell you,) that “The devil is in the details.” Along those lines, the Massachusetts Supreme Judicial Court is now considering a case that has very serious implications for anyone filing a Massachusetts personal injury suit in the future. The entire focus of the case that the SJC is weighing, (Law v. Griffith; SJC No. 10463) centers on medical bills and how juries assess damages that they may award to plaintiffs.

You see, juries are allowed to take into consideration a number of factors when assessing and awarding damages when they find in favor of a plaintiff. Some of these factors can include:

• Evidence of conscious pain and suffering • Evidence of lost income – past and future • Past medical bills

In a type of case that is a hybrid between a Massachusetts personal injury suit and a civil rights claim, the City of Attleboro, Massachusetts has agreed to pay a 17 year-old girl $100,000 in damages to settle a suit against the city alleging excessive use of force, and police brutality.

Esther Durex, then 16 years old at the time of the incident on October 12 2008, said she was beaten by police after leaving a party on that date last year. The settlement was negotiated with the city by the youth’s attorney, and was approved recently by Judge Robert Kane of Fall River Superior Court. Reportedly, the settlement will be paid by the city’s insurance company. The settlement required a judge’s approval because the plaintiff is a minor.

Durex’s attorney, David Cass, calling her a “model student,” said the Attleboro High School senior was stopped and eventually arrested by police after leaving a party on the date in question. He said his client was struck by officers with clubs in the head, legs and arms. Durex suffered a broken wrist in the incident. The victim incurred approximately $2,700 in medical bills and has had to receive psychological counseling as a result of the incident, according to her attorney.

I’ve been traveling out of office for a couple of weeks, and I haven’t posted anything for too long – my apologies to my loyal readers. Today, I want to send this brief message: I’ve been given a lot of good things in this life. I’ve had my share of suffering and personal losses, also, but I am grateful for what I have. Most importantly, for the gift of my beautiful wife (who had a birthday yesterday,) and for those I am close to. We are all at different places in life, and we all have different blessings and burdens. But I think we can all agree that, unfortunately, there are always those who have less than we do, and that we can all be grateful to varying degrees for what we have in life. Debbi and I are blessed to be here in Hawaii over Thanksgiving, and while this is a beautiful place, it is also marked by a very high cost of living, and by the sadness of too much poverty for too many who live and work here. We hope we can do our part to leave this place having extended some kindness and benevolence to those who live here, especially on Thanksgiving Day during our visit.

I passed a Buddhist statuary today, and a particular contemplation struck me as important: “When Wishes Are Few The Heart Is Happy.” That is a tall order in a world dominated by a consumerist-mentality and by nonstop messages of “Buy, Get, Acquire.” But these age-old words are important to remember, or it becomes hard to be grateful for anything.

And so I give thanks for the blessings I have, including my loyal readers, my friends and my clients.

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.

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.
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My post today is not about a case decision or a new law, but about a person I know who qualifies in my opinion as one of the finest trial lawyers, and finest people, I know. His name is Leo Boyle. A founding partner of Meehan, Boyle, Black & Bogdanow in Boston, most people outside of legal circles might not know that name, but he is one of the true unsung heroes of our day – for several reasons.

First, Leo has dedicated his life to fighting for the “little guy” in society: The person who has been injured because of someone else’s negligence – be it a corporation or another unknown person. Regardless of who injured such a person, he or she had to go up against powerful corporate and insurance interests to achieve a measure of justice. That’s how our civil justice (civil liability) system works: 95% of the time, when an injured person sues a company or another person for negligently injuring them or worse, causing death to a loved one, it is an insurance company or corporate interest that defends the claim. And trust me, as a Boston injury lawyer who represents people who have suffered terrible injuries, I can assure you: Those insurance companies and corporate interests fight hard. The typical injury victim is usually an unknown person, without much power or influence: Literally David up against a huge corporate Goliath. Without a dedicated, talented lawyer to take up their cause, they don’t stand a chance. To employ some slang parlance, they’re toast.

Enter a man like Leo Boyle. Leo has spent his entire career fighting for the “little guy” – with incredible results. More lawyers should be like Leo; I know I’ve tried to be. Fortunately, I had the chance to observe and get to know Leo almost 25 years ago, when I was Public Affairs and Media Counsel for the Massachusetts Academy of Trial Attorneys (MATA,) and Leo was on the Board of Governors. He’s always been a source of wisdom and advice to me. Recently, the American Association for Justice honored Leo by bestowing upon him the Leonard M. Ring Champion of Justice award in Washington, D.C. While the AAJ honored Leo for many different instances of justice that he has achieved for so many over the years, the award centered on Leo’s actions when he was President of the national bar association in 2001, when it was then known as the Association of Trial Lawyers of America (ATLA.)

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