William D. Kickham
William D. Kickham
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This past March, a four year-old boy was killed in an escalator accident at a mall in Auburn, Massachusetts. The boy, Mark DiBona, was pulled by the handrail of the escalator into a 6 ¼ inch gap that existed alongside the escalator. The boy was pulled into the gap that abutted a Plexiglas barrier, and he fell one story to the floor below, suffering devastating head injuries. After doctors determined that the boy suffered extensive and irreversible brain damage, and essentially declared him brain dead, the boy’s parents donated his organs.

Escalator safety inspections are normally conducted by the state. Media reports following this incident caused the Patrick administration to conduct a review of not only when this particular escalator was last inspected and by whom, but also a statewide review of escalator safety inspections in general. This inquiry led to disciplinary action being taken against not only the two inspectors that were responsible for the Auburn mall escalator, but approximately two thirds of the state’s total escalator inspectors, for approving escalators with safety violations that were similar to those that caused Mark DiBona’s death.

Who is legally liable for injuries or death in such a situation? The answer is, potentially a number of different parties. And who brings the suit? When the case involves a fatality, the answer is the executor of the victim’s estate – in this case, the parents of this boy, on behalf of his estate. The potential defendants in a case like this, can be several: The designer of the escalator; the manufacturer of the escalator (if different); the company that installed the escalator; the property owner of the mall, the retailer in whose store the escalator was operating in; the Commonwealth of Massachusetts (who employed the escalator inspectors); and possibly other potential defendants. The legal reason why so many potential defendants are named is because each party may have played a role in the constellation of events that ultimately led to the injury or death that is the result of this suit.

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When someone is injured, one of the first questions that must be answered, among others, is whether or not the injury took place in connection with the victim’s employment. If the injury inarguably took place at work or while on the job, then the expertise of a Massachusetts workers compensation lawyer is needed. If the injury did not take place at work, then the injured victim should seek the advice of an experienced Massachusetts personal injury laywer.

Sometimes, the issue of whether an injury occurred on the job or off, isn’t so clear-cut. The Massachusetts Supreme Judicial Court (SJC) is now considering a case that could have a significant impact on the liability of contractors and subcontractors for Massachusetts construction site accidents and Massachusetts personal injuries. The case, Wentworth v. Becker, stems from a 2005 explosion at a home construction site in Newburyport, Massachusetts, in which a father and son were critically injured. The father, Timothy Wentworth, 51 at the time, died from burns he suffered in the explosion. His son Ezekiel, then 24, survived but suffered severe, disfiguring burns. The Wentworths were spraying a waterproofing material at a home construction site when a pilot light from a water heater ignited fumes from the spray.

According to records filed in the case, a Newburyport builder by the name of Henry C. Becker hired the Wentworth’s’ North Berwick, Maine, company as a subcontractor on the Newburyport construction job. The Wentworths’ company did not carry workers’ compensation insurance, which pays for medical costs and lost wages when a worker is injured or killed while on the job. Massachusetts law, specifcally M.G.L. Chapter 152, requires most employers to provide workers’ compensation insurance to employees and also requires most employers to make sure that subcontractors are covered in most situations. The Massachusetts Department of Industrial Accidents administers most of these regulations. Cheryl Wentworth, widow of Timothy and mother of Ezekiel, filed a workers’ compensation claim against Becker, asserting that he had permitted an uninsured subcontractor to work on the job. Becker’s company agreed to a settlement in that claim, according to court records. Cheryl Wentworth later hired a Massachusetts personal injury lawyer (note: not this firm,) to sue Becker on top of the previous workers compensation claim, alleging negligence in the death of her husband and the injuries that her son suffered, and that’s where things got really thorny. Becker fought the suit in court, arguing that Massachusetts law doesn’t allow subcontractors such as the Wentworths, to collect workers’ compensation insurance and maintain a Massachusetts personal injury suit for damages. Becker argued that under the “exclusivity provision” of the Massachusetts Workers Compensation statute – an injured worker must choose one forum (a personal injury suit) or the other (a workers’ compensation claim, which is a much more streamlined, administrative process.) Becker argues that the Wentworths could not choose both, and that they had already chosen a workers compensation claim. Two years ago, an Essex County Superior Court judge, Thomas R. Murtagh, found in favor of Becker.

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Texting while driving automobiles has been the focus of a lot of conversation in the recent past, in several states. In Massachusetts alone, a new law against texting while driving became effective in 2010. Most people, though, wouldn’t expect that the problem of texting while driving would be witnessed on a subway car.

Yet in 2009, that’s exactly what happened on a Green Line subway car operated by a Massachusetts Bay Transportation Authority (MBTA) driver. The subway car driver had been sending a text message to his girlfriend while accelerating the trolley from zero to 25 miles per hour along 586 feet of subway track. The driver went through a yellow subway light and ran two red subway lights before colliding with a stationery trolley with its brake lights on, in the Government Center MBTA stop. The crash injured 68 people and caused nearly $10 million in MBTA property damage. Samantha Mattei, 21, was one of those 68 injured. As a result of the crash, she suffered a broken back, a serious concussion, nerve damage, and lacerations to her face. She also suffered other injuries causing vertigo, nausea, and constant headaches. Two years after the accident, she still walks with a cane. Because she cannot drive a car due to her injuries, her parents must drive her everywhere. Because she has difficulty concentrating on her academic studies, she says she is on the verge of losing her scholarships.

So it came as no surprise that Ms. Mattei last week filed a lawsuit against the MBTA and Aiden Quinn, the subway car operator, in Salem Superior Court. In filing her suit, Ms. Mattei told the Boston Globe that “I was injured as a result of something that was perfectly preventable. As a result of negligence, I was personally affected in a way that has cost me money, time, and many parts of my life. I would like to see things change for the better.” The Massachusetts personal injury lawsuit seeks $51,425 as compensation for medical bills and lost wages, as well as damages for pain and suffering. If the case is not settled prior to trial, a jury would decide how much, if any, to award for pain and suffering. MBTA officials declined to comment on the lawsuit, citing its policy not to comment on pending litigation. A spokesman did note, however, that the trolley operator, that Aiden Quinn, was fired by the MBTA, and pleaded guilty last December to negligent operation of the trolley, a misdemeanor.

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Usually, most of the legal stories giving rise to posts on this blog originate in or have to do with cases and legal issues in Massachusetts. However, a tragic incident at Yale University earlier this week, illustrates the importance of product liability law, and the impact it can have on making products safer for the Americans who use those products.

Scituate, Massachusetts resident Michele Dufault, a bright Yale University student, was killed earlier this week in a horrific incident involving a lathe at a machine shop on campus. Dufault, a senior at the Ivy League school who was majoring in physics and astronomy, was found at Yale’s Sterling Chemistry Laboratory at around 2:30 AM Thursday by other students in the building. The students immediately called New Haven police, but it was too late. A statement from Yale University president Richard C. Levin did not reveal whether Dufault died in the lab or later at a hospital. Nor was there a statement as of Friday evening, April 15, as to whether Dufault had been alone in the lab, or not.

This incident must have been absolutely horrific. I remember working on a lathe in high school machine shop. When I look back on those times, I’m surprised that I wasn’t injured, as well — this machinery is very powerful, and extremely dangerous. For those unfamiliar with machine shop equipment, a lathe is a machine that is used to shape usually straight lengths of metal or wood by spinning it at extremely high speeds. (So fast that when spinning in the lathe, the length of wood or metal would look like a blur to the naked eye.) Carving tools are applied to the edges of the spinning wood or metal, to shape the material. By all available accounts of the incident, Ms. Dufault’s hair became caught in the lathe, pulling her head into the machinery.

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Yes, you read the title of this post correctly: Transocean Ltd., the company that owned the Deepwater Horizon Gulf Oil Rig that blew up last year and proceeded to spew at least 200 millions of gallons of oil into the Gulf of Mexico, is actually awarding financial bonuses to its senior executives for – of all things – the “best year in safety performance in our company’s history.”

I’ve seen a lot of examples of corporate arrogance, lies, greed and deceit, but this has to rank up there with some of the worst. This company contributed to probably the worst environmental disaster and toxic tort this nation has ever seen, with the full effects not yet even being fully measured or fully felt. Its negligence, documented as being fueled by corporate cost-cutting, resulted in the deaths of 11 oil rig workers. It partnered with two other companies – BP PLC and Halliburton, Inc., who flagrantly and consistently lied to the public and to the government about the true nature and extent of the disaster. It contributed to thousands of people losing their jobs or their careers in the commercial fishing and hospitality industries, who are still suffering economically – and it has the audacity to hand out millions in cash bonuses to its executives. As has been said before, “You can’t make this stuff up.”

In regulatory papers filed with the Securities and Exchange Commission (SEC) last Friday Transocean noted “the tragic loss of life” in the Gulf when the rig operated by BP PLC exploded last April. Large of them, wasn’t that? Despite the devastating fiasco that occurred on their rig, the company got out its bean counters, and found a way to claim that it still had an “exemplary” safety record, because supposedly Transocean “met or exceeded” certain internal (i.e., its own) safety objectives regarding the frequency and severity of its accidents. “Safety” accounts for approximately 25 per cent of senior executives’ total cash bonuses at Transocean. Apprarently, greed and negligence account for the other 75 per cent. CEO Steve Newman’s bonus (alone) last year amounted to $374,062. In case you’re curious, the total pay works out as follows: A base salary of $850,000; “perks” of $622,057, which includes housing and vacation allowances (and other things); on top of the $374,062 bonus. Folded into this figure are also Transocean stock options valued at $1.9 million and deferred shares valued at $2 million.

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While this post is about product liability law, it’s also about the age-old story of corporate greed and deception. Ever hear of on over-the-counter cold remedy called Zicam? Most people have. – Matrixx Initiatives Inc. and Zicam L.L.C., were jointly the developers, manufacturers and distributor of this product. Zicam was marketed with the claim that it could shorten the symptoms of the common cold, if taken at the onset of symptoms. The zinc gluconate formulation generated approximately 70% of the company’s sales. While the product used to be manufactured and sold as a nasal gel, it’s now sold as an oral spray. There’s a reason for that. And that leads us to a typical story of corporate deception.

It seems that in the late 1990’s, Matrixx became aware from several sources (it’s alleged,) of a very serious side effect of using Zicam. That serious side effect is called “anosmia“, which is the medical term for loss of the sense of smell. In 1999, it’s alleged that a Matrixx staffer was told by the neurological director of a research organization called the Smell & Taste Treatment and Research Foundation, Ltd. that a “cluster of patients” had suffered anosmia after using Zicam. Three years later, as reports of these side effects grew, Matrixx’s Vice President for Research and Development contacted a scientist at the University of Colorado Health Sciences Center , allegedly was told of the results of previous studies linking zinc sulfate [a slightly different zinc compound] to loss of smell. This scientist later buttressed these initial reports, by forwarding to Matrixx with further abstracts, confirming zinc’s toxicity.

About a year later, a colleague of that scientist (from the University of Colorado Health Sciences Center,) observed 10 patients suffering from anosmia following Zicam use. These scientists then prepared a poster for display at a meeting of the American Rhinologic Society, in connection with a substantive presentation they were going to make at this medical association meeting. After learning of the scientists’ plans, Matrixx warned them that they were not allowed to use the Matrixx company name or the product name (Zicam.) As a result, the scientists deleted this information from their posters and presentation.

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Too often within the escalating debate over “tort reform“, the facts take a distant back seat to ever more shrill demagoguery.

It seems that all we ever hear from proponents of tort reform, and their Republican lapdogs in Congress and in State Houses across the country, are noxiously recycled claims that liability insurance premiums are supposedly caused by “frivolous lawsuits, run amok.” These liability insurer-funded interests claim that if we just enact tort reform (translation: If we decimate our civil justice system,) all kinds of liability premiums, from auto insurance to homeowners insurance to medical malpractice insurance, would drop and stay down. Think again, America: It’s not so. And it rarely, if ever, has been. These claims are the worst form of legislative bait-and-switch perpetrated on the American public. And the driving forces behind tort “reform” – the liability insurance industry – knows it.

Though I have to hand it to them when it comes to campaign strategy planning, because they also know something else: They know that they can’t be the ones to most openly make these arguments, or they’ll appear too self-interested. After all, they’re the ones who stand to reap millions in premium that they’ll never pay out to injury victims, if the doors to the courthouse are forever locked. The best strategic tactic in this case? Get other groups to “front” these claims. The best groups to get to do this? Their customers, who are being gouged by the high liability premiums their carriers charge them. Who are those customers? Doctors, business owners, commercial property owners, private property owners, homeowners, and anyone who owns a car. Anyone who buys liability insurance of almost any kind. All these groups are angry, motivated forces who can be (quite literally) conned into believing that the reason their premiums are so high, is a “lawsuit crisis.” Not a bad strategy, from a public affairs campaign standpoint. Displaced anger is precisely what’s fueling the Tea Party movement, and it works. Just ask any master of misinformation (Karl Rove comes to mind.)

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A Suffolk Superior Court judge has awarded more than $6.7 million to the family of a Northeastern University student who died after falling down a set of stairs at a Boston bar in 2007, following a night of drinking. What’s surprising about the award in this Massachusetts premises liability case is that the judge’s award followed a prior jury verdict in this case, where the jury ruled that although the bar violated the city building code, it was not liable for the 21-year-old’s death.

Jacob Freeman died in a fall down a staircase at the Our House East Restaurant on Gainsborough Street in Boston in the early morning hours of April 1, 2007. Freeman’s family sued the bar, Gainsborough Restaurant, Inc., claiming that it was negligent in both its maintenance of the property and the staircase on which Freeman fell down, as well as alleging that the bar was in violation of the City of Boston building code, as well as other licensing violations. Approximately three months ago, a civil jury returned a verdict which said that while the bar had indeed violated building code mandates, it was not liable for Freeman’s death. To Freeman’s family, that verdict seemed contradictory – and it was. In all likelihood, the jury did not like the fact that Freeman’s blood alcohol level at the time of the accident was quite high, and it felt that if it held the bar liable and awarded damages, it would be in essence “rewarding” bad behavior.

As a Boston, Massachusetts accident lawyer, I find this kind of reasoning specious, given the evidence in the trial. Some of that evidence included the following: 1) The staircase lacked required hand rails; 2) The staircase was poorly lit; 3) It did not have a landing, among other hazards; 4) Management of the bar was aware that patrons had used the stairs on prior occasions; and 4) Freeman’s view of the staircase was obscured by vinyl stripes.

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In my previous post on this subject, I noted how President Barack Obama had raised the subject of “medical malpractice reform” in his State of The Union speech last week, and of how a Massachusetts medical malpractice case that just settled this week, illustrates how severe and unjust typical “tort reform” measures would have been in this case.

Just how bad was the medical malpractice alleged in this case? Consider these facts:

• Rebecca was prescribed Seroquel – a powerful antipsychotic commonly used in very serious, and primarily obvious, cases of psychosis.

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President Barack Obama, in his State of The Union speech Monday evening, made another reference to the supposed need for tort reform; to ‘control the rise in health care costs.’ I bristle at these kinds of mentions, for two reasons: 1) They demonstrate how successful liability insurers have been in their propaganda campaign to convince everyone from the person on the street to the President of the country, that increases in the cost of health care and in the cost of liability insurance, are due to “frivolous lawsuits.” 2) The average person who has not been the victim of medical negligence or has not known someone who has been a victim, has absolutely no idea of the impact that these draconian ideas of limiting a plaintiff’s financial recovery in court, will wreak on such victims’ lives.

And they need to know just how bad “tort reform” really is. Tort reform isn’t a single concept or one single law. Rather, it’s an amalgam of ideas and laws that are designed to drastically alter the way our civil justice system works. Many of these “tort reform” proposals would place “caps” on jury awards for pain and suffering, as well as death that results from a doctor’s or a hospital’s medical negligence. Arbitrary caps like this are a liability insurer’s dream – and an insult to anyone else who has suffered due to medical negligence. I’ve blogged previously about this subject, but it can’t be said enough: Arbitrary and formulaic caps on damages, and restrictions on certain types of lawsuits, represent a horrible assault on this nation’s civil justice system. Furthermore, since lawsuits are not a major factor in determining liability and medical malpractice premiums, these inequitable and unjust ideas will not reduce liability insurance premiums, or health care costs.

If anyone needs proof of just how unjust “tort reform” is in the real world, I offer the following. A Massachusetts medical malpractice case that was filed in Suffolk County a few years ago, and that settled this week, illustrates just how horrific some of these cases can be, and of how proposals to enact “caps” on jury awards and damages, are scathingly unjust. Consider the following facts in this case:

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