William D. Kickham
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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.

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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.

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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.

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My readers of this blog know that I’ve previously written about the subject of bullying (a 3-Part post; after reading each post, click on “Next” to take you the Parts 2 and 3) in schools in Massachusetts – and of the tragic consequences that follow. The last time I wrote of this subject, had to do with the suicide death of Carl Joseph Walker-Hoover in the New Leadership Charter School in Springfield. Just a few weeks ago, the equally horrific story of Phoebe Prince was placed before a stunned public. Phoebe Prince was a beautiful young girl whose family recently emigrated from Ireland, to start a new life here. Except that new life was met with death – death at the hands of a sadistically cruel group of ‘mean girls’ from the school Prince attended, South Hadley High School. Those girls targeted the Prince girl because she was apparently the object of a male student’s attention. (It’s also been stated by more than one person at the school, that these girls targeted Prince because she was pretty.) The girls repeatedly bullied the Prince girl, taunting her physically as well as through mentally sadistic use of social media such as Facebook and MySpace, calling her a ‘slut’ and worse. The Prince girl’s parents approached the school’s administrators on more than one occasion, pleading with them to take strong steps to protect their daughter from these abusive classmates, only to see the mildest, most anemic of responses taken to protect this poor girl.

On January 14 2010, Phoebe Prince went home and hung herself in her closet. Her sister found her.

The shocked protests from parents throughout the town arose, their voices shocked and sickened. The South Hadley police promised a ‘full and complete’ investigation. The media both reported on – and editorialized on – the school’s failure to act aggressively to protect the girl. Legislators fumed about “doing something about this” in the state legislature. All the while, the South Hadely School Department engaged in two predictable – and pathetic – tactics: Demurral and denial. And the sadistic ‘mean girls’ who essentially murdered this innocent youth? Whose repeated assault and battery and mental torture drove her to take her own life? Legally, they may be untouchable. There may be nothing that can be done to prosecute them. These twisted, ugly girls (ugly in the deepest, most lasting sense,) were actually widely rumored to openly laugh at how they ‘snowed’ police investigators who earlier questioned them about their actions and Prince’s suicide. It’ not yet clear that the Northwestern District Attorney’s office, might be able to prosecute these girls.

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It’s no secret among people who know me, that, as a Boston Massachusetts product liability lawyer, I’m one of the sharpest critics in the legal community of the pharmaceutical industry, and particularly, pharmaceutical advertising. Yes, I’m fully aware of the societal value that pharmaceutical companies can and do bring to bear, in addressing a number of diseases and medical conditions. And I believe that they are entitled to make a healthy profit in so doing. But what I’ve – and we’ve – all witnessed in the last 10 or 12 years, is the way that pharmaceutical companies pimp their products to the general public through television, radio, and print advertising. It is often obscene, and in my opinion ought to be legislated as illegal. However, there’s a sticky little thing called “commercial free speech”, which delves into an entirely separate subject of First Amendment issues, which I won’t distract my readers with right now. Not that it isn’t very important, but I’ll save that for another day.

Long gone are the days when pharmaceutical company sales reps solely called on – of all things – doctors’ offices – to sell their products. No, they got around that. Their thinking: “Why rely on doctors to write prescriptions for our products, when we can generate demand at the consumer level? Yeah, we’ll flood print and broadcast media with ominous-sounding ads showcasing all kinds of diseases and medical problems, and in the process, get millions of people to march into their doctors’ offices, and demand to be given prescriptions for our products.” This seemed like an even surer bet than taking doctors out to lunches and dinners, and hosting them with everything from golf outings to “professional seminars” at warm, sunny destinations. (Which they still do, but that practice has been gradually dropping, as regulators see more and more how incestuous and unethical a practice it obviously is.)

Take a little test: The next time you’re watching a TV show (ideally during prime time, (8:00-11:00 PM,) keep a pen and paper next to you. Write down the number of advertisements that you see about any kind of drug or health product. Ninety per cent of the time, it’s a pitch from a pharmaceutical company, talking about the horrors of this or that medical condition, and urging you to “Ask your doctor about_______.” Do the same thing the next time you’re reading a newspaper or a magazine. Or listening to the radio (except when driving.) Chances are you’ll realize that the average viewer, reader or listener is inundated, constantly, by drug companies trying to get you to “Ask your doctor” about whether you “might have” some medical problem or condition, and whether their product “might help you.” Not only are ads in newspapers across the country regular fare, but full page ads. Any idea what a full page ad in an average major city daily newspaper goes for, say, Monday through Friday? About $10,000.00 – and more on weekends. Hawking everything from Aspirin to Zithromax, for every condition from high cholesterol to depression to heart disease to smoking, they never cease their constant drumbeat to “Ask your doctor about ______.”

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Here’s an interesting case – far from decided or even litigated yet – but interesting nonetheless. It’s a hybrid of both medical malpractice and wrongful death (actually, wrongful death arising from alleged medical negligence.)

The parents of two young children, whose mentally ill aunt literally carried them to their deaths on a Lowell highway in 2008 have sued McLean Hospital in Belmont, alleging that the hospital was negligent in treating the woman, Marcelle Thibault, 39, whose actions killed the children and herself.

Ken and Danielle Lambert, of Brentwood, New Hampshire, argue in the complaint filed in Suffolk Superior Court that the renowned Massachusetts psychiatric hospital provided negligent care to Danielle Lambert’s identical twin sister, Marcelle Thibault, and is therefore legally responsible for the wrongful deaths of their 5-year-old daughter, Kaleigh, and 4-year-old son, Shane. Thibault, the children’s aunt, was also was killed on Jan. 11, 2008, when she intentionally carried the children into high-speed traffic on Interstate 495 in Lowell. Following the deaths of their children and Thibault, the Lamberts told the Boston Globe that psychiatrists had diagnosed Thibault with bipolar disorder in September 2007 and discharged her six days later after prescribing psychotropic drugs and outpatient therapy.

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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.

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2009 ended with a big bang when it comes to Massachusetts injury law, specifically, Massachusetts medical malpractice. A lot of legal specialists such as me are paying close attention to a jury verdict that was handed down last month in a Suffolk County medical malpractice case: A $15 million award to the parents of a boy who died after being treated at Children’s Hospital in Boston.

The case, brought by the parents of a 3 year-old boy who died in December 2004 after undergoing surgery for a birth defect at Children’s Hospital, has caught the attention of both plaintiffs lawyers as well as insurance defense attorneys. The boy’s parents, Brian and Andrea Fox of Philadelphia, said they brought the suit because they believed that doctors at Children’s Hospital had lied to them about the treatment their son received at the hospital. After four days of deliberations in Suffolk Superior Court, the jury found that two doctors at the hospital caused the boy’s death: Dr. James Lock, and Dr. James A. DiNardo, an anesthesiologist. Dr. Lock had until last year been the physician in chief at Children’s Hospital.

Massachusetts juries have awarded medical malpractice awards of this size before (awards this high don’t happen often, but they have happened.) What’s unusual about this jury award is not only its amount, but the fact that most jury awards, and non-jury settlements, of this amount, are given when the victim is still alive, and will require several or many years of specialized medical and custodial care. Awards and settlements of that size are designed to pay for the future expenses of such care, which over time can easily cost millions. So when a jury awards damages that are this high, in a case where the victim is deceased, it’s very noteworthy. Also important: The boy’s parents will not receive the full $15 million, but an un- unspecified, lesser sum. This is because the attorneys for the plaintiffs and the defendants entered into an agreement before the case went to the jury, informally called a “High-Low Agreement.” This agreement is designed to guarantee the plaintiffs a minimum amount of damages, regardless of the jury’s verdict, in exchange for a cap on a possibly higher damages figure that the jury may award. Lawyers for both parties would not reveal what this figure is, and that too is standard procedure: These agreements are under seal. The jury did not know this, however, and what’s outstanding here is, not knowing this, how much they awarded the plaintiffs.

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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.

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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

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