Massachusetts Injury Lawyer Blog

According to a Boston.com report, a Boston jury awarded a woman's estate $50 million and her son $21 million in damages yesterday in a products liability lawsuit against the makers of Newport cigarettes. The plaintiff showed that back in the 1950s and 1960s, The tobacco company had given free cigarettes to children as young as nine years old in a Boston housing project. Most of the children were African-American, and studies show that 75% of African-American smokers today prefer menthol brands like Newport. the plaintiffs argued that the company engaged in a free givaway marketing strategy to get African-American children hooked on smoking Newports.

Marie Evans died of lung cancer at the age of 54 in 2002. She recalled, in testimony that was videotaped before she died and played to the jury during the trial, how she was given free Newports from a white truck that looked like an ice cream truck when she was nine years old. She traded the cigarettes at first, but started smoking them when she was 13. She said she tried to quit several times, but could not, and smoked until she died.

The $71 million award was for compensatory damages alone, and the jury now will take up whether to award punitive damages. The plaintiffs also have a claim under the Massachusetts Consumer Protection Act, which the judge will decide, and which could lead to the doubling or trebling of the damage award.

The tobacco company will ask the trial judge to set aside the verdict, and will file an appeal, and big awards against tobacco companies are often overturned on technicalities. But there is no doubt that cigarette manufacturers have been forced to change their ways because products liability lawyers have gone after them. Lawsuits caused Congress and the Surgeon General to act, and lawsuits have made life safer for the children growing up today.

At KJC Law Firm, we are proud to be part of that movement to use the law to make the world more safe.

Continue reading "Boston Jury Hits Tobacco Company For Giving Cigarettes to Children" »

Richard Silvia was driving down Route 28 in Falmouth, Massachusetts, last week when he choked on some raisins he was eating. He passed out. His truck crossed the road, hitting two cars, and nosed into an embankment. The impact stopped the truck and his airbag deployed. The force of the airbag expelled the raisins, and Silvia regained consciousness with only a scraped wrist. The other drivers also suffered only minor injuries. The incident made national news.

Silvia was ticketed for impaired driving. I guess he should have pulled over as soon as he choked and died safely by the side of the road.

Continue reading "Airbag Performs Heimlich Maneuver" »

On I-495 near the US Route 1 interchange in Plainville, a 1996 Toyota Avalon went off the road and crashed into a tree last Saturday, according to the Attleboro Sun Chronicle. The 18 year old driver was not wearing a seatbelt. She was airlifted to Massachusetts General Hospital in Boston, where she died. The 21 year old passenger was wearing a seatbelt. She was treated for minor injuries at Sturdy Memorial Hospital in Attleboro. Seatbelts save lives -- but only when they are worn.

Massachusetts has a law requiring that all drivers and passengers over 11 years of age must wear a seatbelt when riding in a car. But not everyone obeys this law. A recent Massachusetts study found that on average more than one out of four front seat drivers and passengers were not wearing their seat belt. There were some interesting but predictable variations on the rate of seatbelt use among different groups.

The rate of seatbelt usage among women was 79%; among men it was 68%. The rate for people over 65 was 82%; for other adults it was 73%; for teens it was 67%. People driving commercial vehicles buckled up only 50% of the time, and pickup truck drivers only 61%. Those figures are depressing and somewhat scary. We have worked hard to make manufacturers put out safer cars by forcing them to pay for the injuries they could have prevented by providing airbags and seatbelts. But we have to do our part and use these safety features, too.

Continue reading "A Seatbelt Saves a Life" »

Peering out the little oval window on the side of the aircraft as it taxied around Logan International Airport in Boston, I often wondered how pilots knew when to cross a taxiway, turn right or left, or move out onto the runway. I studied the markings on the ground, cryptic signs in the grass along the pavement, and the lights that seemed interspersed at random. I always assumed that somebody was looking out for the hundreds of bodies captive in the metal tube with wings as other tubes full of bodies zoomed past or lumbered nearby. I felt most secure when we joined a line waiting for the front spot for takeoff. After all, if everybody else was going this way, it must be ok.

Turns out, I was right to worry. A recent Boston.com entry reports that there have been 117 "runway incursions" at Logan in the last 10 years, 11 so far this year. That means unless we have only .7 of an incursion in the next couple of months, we are ahead of the yearly average. A runway incursion is when a plane turns onto the wrong runway or when there is a near-collision between two planes or a plane and some other service vehicle. Of course, we can take comfort that we are only fourth worst in this regard, behind Los Angeles, Chicago, and Philadelphia.

Now they are trying out a new system of red lights imbedded in the tarmac which, through a series of sensors, transponders and radar, light up when it is unsafe for the plane to enter or cross the runway. "It's simple," said Randy Babbitt, an administrator of the Federal Aviation Administration. "Pilots have to stop when they see a red light."

Maybe we won't have that last .7 of an incursion. I'll be looking out my little oval window to help.

Continue reading "Traffic Safety Lights Installed on the Logan Tarmac" »

On September 30, 2010, the new, highly publicised Massachusetts law banning texting while driving takes effect. The same law bans any cell phone use while driving for those under 18 except for certain emergency calls, generally 9-1-1 calls for police or medical assistance.

Everyone agrees that texting while driving is dangerous. If you look at your phone for three seconds to read or compose a text message while you are driving on the highway at 65 mph, you travel the length of a football field without looking at the road. Of course the same is true for checking out who is calling you on the cell phone or scrolling through your contacts list to make a call, or entering a phone number to call, none of which seem to be prohibited by this new law.

The Governor's press release makes it seem like we can expect much safer roads now. "Without question, this new law will save lives on our roadways," the Governor is quoted as saying. On the other hand, a new study released today by the insurance industry shows that such bans have no effect on crash statistics, and seem to have no effect on how much people text behind the wheel. The Boston Globe reports that texters may be causing more accidents by holding the phone down near the seat to avoid detection, and that police departments are talking about getting SUVs so they can ride higher and look down into potential suspects' cars. Of course if it's the police car driver who is doing the looking, that is pretty unsafe, too.

Some have suggested that parents have to set an example and stop using cell phones -- texting or talking -- if they expect their children to obey the law, and that they have to talk to their children about the dangers of distracted driving. Maybe the "shotgun texter," a friend in the passenger seat who will text for the driver, will become as popular as the "designated driver," who stays sober and drives his drinking friends where they need to go. It seems that education may be the best way to fight texting while driving, and that the new law may be more important as an expression of what is the right way to behave than as a means to prosecute violators.

Continue reading "Will The New Texting While Driving Law Work?" »

When Tom Brady's car and Ludgero Rodrigues' minivan crashed in Back Bay, Boston, yesterday, what most people wanted to know first is whether the New England Patriots' star quarterback was injured. The answer was no, and we all breathed a sigh of relief. The outlook for the season was still good.

Next, we all wanted to know what happened and who was at fault. Rodriguez ran a red light, we were told, and crashed into Brady. Well, maybe. According to the Boston Police report, Rodrigues says the light was green when he went into the intersection of Commonwealth Avenue and Gloucester Street, and Brady ran into him. The physical evidence shows clearly that Brady's front end rammed the middle of the passenger side of the van. Brady says the light was green for him as he entered the intersection. A 74 year old woman who was walking her dogs says that as she was in the ambulance with Brady, he asked her if the minivan ran the red light, and she assured him it had. She reported that the walk light came on for her to cross Commonwealth Avenue just before the minivan came past. The police wrote Rodrigues a ticket for running the red light based on her evidence. Plus, the minivan's driver was a 21 year old with a poor driving record, though later we found out that the bad record had been exaggerated.

As an afterthought, seemingly, we heard reports that the minivan driver's 49 year old father, Rogerio Rodrigues, was in the back of the van and had to be cut out with the "jaws of life" and taken to the hospital. It turns out he has severe injuries -- a broken back -- and has undergone several operations with more to come. Local trial lawyers speculated on how much Tom Brady could collect from his insurance if Brady later found out he was injured. Nobody seems to be concerned about Rugerio Rodrigues' rights.

A passenger in a crash can sue either or both of the drivers. It is rare that the passenger has any degree of contributory fault. Rather, it is almost always one or both of the drivers whose negligence caused the crash. So to Rogerio Rodrigues, the red light controversy would seem to be unimportant. But the question is, how much insurance does the minivan carry? If Brady was not at fault, Rogerio would have to rely on the minivan's insurance to pay his entire claim. But if Brady was even 1% at fault, even if Ludgero was 99% at fault, Rogerio could collect the entire judgment against Brady. And that could be a sizeable amount.

Continue reading "Tom Brady Car Crash Injures Passenger" »

Some 800 guests were forced to evacuate Boston's Intercontinental Hotel this morning after a 2:00 a.m. electrical fire was reported in the electrical room of the hotel garage. According to the Boston Herald, guests were forced to stay outside of the hotel for hours, while workers shut down the power in the hotel to deal with the fire. No one was hurt.

Outside of the city in Malden, two teenage girls were injured this morning when their house caught on fire. The Boston Herald reported that when police responded to the 911 call, they found that flames surrounded the house. The officers rushed into the burning house and were able to rescue a teenage girl on the first floor while another teenage girl, who was on the second floor, jumped from the burning building. Both girls were taken the Massachusetts General Hospital, and one of the police officers was taken to Melrose Wakefield Hospital.

Residential and building fires account for only 25% of fires nationwide according to the National Fire Protection Association (NFPA), yet these fires account for 83% of deaths and 77% of injuries from fires across the nation. Cooking, heating and smoking are common causes of residential and building fires.

NFPA recommends that you check your smoke alarms regularly to make sure they are working and develop and practice a home fire escape plan.

Continue reading "Two Fires, Three Hospitalized. Are You Ready? " »

The Boston Globe reported yesterday that cases of Lyme disease had dramatically increased in Metrowest communities like Framingham and Natick. Lyme disease cases have more than quadrupled in Middlesex, Norfolk, and Worcester Counties since 2000. In Middlesex County, the numbers went from 136 cases in 2000 to 767 cases in 2008. The cause appears to be the rise in the deer population in these areas, and the development of new housing in areas where deer live. Lyme disease is caused by tiny deer ticks which are hard to spot because they are the size of a poppy seed.

Often Lyme disease is misdiagnosed. The early symptoms are not unlike the flu: fever, headache, fatigue, and sometimes, but not always, a rash. If untreated, the disease can progress to include severe arthritis, neurological problems including numbness, weakness, paralysis, and memory loss, meningitis, and heart problems. Commonly, doctors misdiagnose chronic Lyme disease sufferers as having multiple sclerosis, rheumatoid arthritis, or fibromyalgia. There is also a controversy about treatment of Lyme disease, with the Infectious Diseases Society of America (IDSA) and insurance companies advocating a short term treatment, and others, like the International Lyme and Associated Diseases Society (ILADS) arguing for a longer term treatment. Within the last two months, a statute was passed providing patients and doctors the right to choose which treatment regime to follow.

If you have Lyme disease and have been misdiagnosed or not treated effectively, you should consult a lawyer who specializes in medical negligence law.

Continue reading "Lyme Disease is Dangerous, Often Misdiagnosed, and Spreading" »

When it comes to discrimination, people often talk in code. Rarely do we hear the classic hateful epithets for races, gender, or sexual orientation, at least not from employers when they are making decisions about employees. A few recent articles point out the subtle, or sometimes not so subtle, code words and phrases that have now taken the place of overt discrimination.

A Cleveland, Ohio, TV station reports that a local temp agency was sued by the Equal Employment Opportunity Commission (EEOC) because when they sent the applicants' resumes to employers, they attached a notecard with a code phrase on it. "Chocolate cupcake" was a young African-American woman. "Hockey player" was a young white man. "Small hands" was for women in general. "Ballerina" and "basketball player" were two other codes, which the article does not translate, but we might guess what they mean.

A Boston Globe article reports that the Acton-Boxboro School District is being sued after it fired a lesbian softball coach. She says that some parents complained that she set a bad example because she was a single mother, though she and her female partner were raising five children together, and in fact three of their children attended the school where she worked. Other parents complained because she brought her partner with her on a team trip. The biggest complaint seemed to be that she swore too much, and that the students were uncomfortable with her vulgar language. She says that if she were a heterosexual man, these actions would not result in complaints or dismissal.

Finally, the San Francisco Chronicle reports that Google, Inc. is being sued by a 54 year old manager who was fired after co-workers called him "fuddy-duddy" and an "old man." Management was more subtle when they let him go -- they said he was a bad "cultural fit" in the youth oriented company.

Discrimination in employment is far more subtle today than years ago. Code words, stereotypes, and an acceptance of the way the "majority" -- usually meaning white men -- view the world can lead to treating people of other races, women, and gay, lesbian, bisexual and transsexual people badly. But if that happens in the employment context, it is still illegal.

Continue reading "Insidious Discrimination" »

The Massachusetts Department of Children and Families and Department of Public Health want to remind you that summertime carries special dangers for children. In a press release, they highlight three areas: windows, water, and cars.

In the summertime, we open our windows up, and children fall from open windows, sometimes to their death. A window screen creates a visual barrier that makes us feel like the window is safe, but a window screen is not strong enough to keep a child, even a toddler or a crawling baby from falling out. There are window guards you or your landlord can install, or you can open windows from the top, not the bottom.

Drowning is a leading cause of death for children in Massachusetts and nationwide. Kids can drown in shallow water as well as deep, in bathtubs, swimming pools, lakes and ponds, or the ocean. You must have your eye on small children in or near the water at all times, and even larger children should be supervised. If you have a swimming pool on your property, make sure there is a fence at least four feet high around it, with self-latching gates that are above the reach of children.

Cars are always dangerous, and you should always make sure children are not around moving vehicles or left unsupervised in cars that are running or have the keys in them. But summertime poses a special risk: overheated vehicles. Children should never be left alone in a car in the summertime. The National Highway Traffic Safety Administration (NHTSA) says that a car with the windows down 2" in 80 degree weather can reach deadly heat levels in ten minutes.

We hope these tips will help you to do what you can to protect your children from harm. At KJC Law Firm, we are dedicated to making your life safer. By holding landlords, property owners, drivers or manufacturers responsible for the injuries they cause, we give them good reasons to act more responsibly and safely. And if you or your children are injured, we will help you to get proper compensation.

Continue reading "Summertime Can be Dangerous for Children" »

The U.S Consumer Product Safety Commission announced today that Fisher-Price has initiated a voluntary recall of its Little People Play 'n Go Campsite, a seven-piece plastic play toy which includes a figure called "Sonya Lee." Only Sonya Lee figures that bend at the waist and bear the product number R6935 are part of the recall.

Although no injuries have yet been reported, there have been a number of reports that the Sonya Lee figure in the play set can break at the waist and expose small parts that are a choking hazard. The public is advised to stop using the Sonya Lee figure immediately.

You can get more information on the recall at Mattel Consumer Relations Answer Center.

Continue reading "Fisher-Price Recalls Toy Due to Choking Hazard" »

A list of the top ten consumer complaints for 2009 was just released a few days ago by the Consumer Federation of America, the National Association of Consumer Agency Administrators, and the North American Consumer Protection Investigators. The three major consumer groups jointly conducted a survey of several state, county, and city consumer agencies from a number of states across America, including several from Massachusetts, like the Cambridge Consumers' Council, the Cape Cod Consumer Assistance Council, and the MASS PIRG Consumer Action Center. The report, entitled 2009 Consumer Complaint Survey Report, was released on July 27, 2010.

Here's a summary of what they found (it's really the top 11, because #9 was a tie):

1. Auto: deceptive advertising or misrepresentation in selling or leasing cars, defective vehicles, or inadequate repairs.

2. Credit/Debt: problems with credit card companies, mortgage brokers, bill collectors, or debt relief agencies; predatory lending.

3. Home Improvement/Construction: not doing the contracted job properly, or not doing it at all.

4. Utilities: problems with electric or gas companies or cable, satellite, phone, or internet providers.

5. Retail Sales: deceptive advertising, defective merchandise, or problems with coupons, gift certificates, or rebates.

6. Services: poor performance, misrepresentation, or not being properly licensed.

7. Internet Sales: misrepresentation of products or prices, or nondelivery of merchandise.

8. Household Goods: misrepresentation of products or prices, nondelivery of merchandise, or inadequate repairs

9. (tie) Landlord/Tenant: improper eviction, violations of health or safety codes, refusal to repair, or disputes over rent or deposits.
9. (tie) Home Solicitations: misrepresentation of products or prices, or nondelivery of merchandise in TV or telephone, mail, or door-to-door solicitation; not honoring do-not-call list.

10. Health Products/Services: poor performance, misrepresentation, or not being properly licensed.

All of these reported ways to cheat consumers have one thing in common: they are easy to carry out because they rely on the consumer having no good way to fight them. Most ordinary people don't have the money to hire a lawyer, and the stakes are too small compared to a lawyer's fees. Here in Massachusetts, though, we have a powerful weapon against people and businesses that defraud consumers: the Consumer Protection Act. That law provides that consumers who are damaged by unfair or deceptive practices are entitled not only to get their damages back, but sometimes double or even triple their damages to punish the wrongdoer, as well as having all the costs of the suit and their attorney's fees paid by the defendant. Often just a "Demand Letter" under this statute from a good consumer attorney leads to payment of the damages and attorneys fees without even filing suit.

The Consumer Complaint Survey Report lists six pages of tips about "How Consumers Can Protect Themselves," which is worth reading. It can help you avoid losing your money in the first place. But if it is too late, and you are the victim of a deceptive or unfair consumer practice, the Massachusetts Consumer Protection Act can give you the power to fight back, and a good lawyer is not that hard to find.

Continue reading "Top Ten Complaints by Consumers" »

The Massachusetts Supreme Judicial Court (SJC) today eliminated the ancient distinction between "natural" and "unnatural" accumulations of ice and snow, making property owners liable for injuries caused by their negligent creation or failure to eliminate both kinds of winter hazards.

Calling the distinction between natural and unnatural accumulations of ice and snow a "relic" derived from old cases, which "has sown confusion and conflict in our case law," the Court in Papadopoulos v. Target Corporation discarded it and stated: "We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to 'act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.'"

In the past, people who slipped and fell on ice or snow that had fallen or accumulated naturally and which remained untouched by the owner were unable to recover from the owner for their injuries. A property owner was better off not shoveling or plowing the snow or salting or sanding the ice. Over time, this concept was applied expansively to include even natural snow that had been plowed into a pile or ice which was uncovered by the shoveling efforts of the owner. Indeed, in the Papadopoulos case, the trial judge ruled that the defendant was not liable when the plaintiff tripped on a chunk of ice that had fallen from a plowed up snow bank or a patch of refrozen runoff from the snow pile, because those were "natural" accumulations even though they resulted from the plowing of the parking lot.

The SJC applied the new rule "retroactively", that is, to any cases currently pending or yet to be filed, even if the injury has already occurred, so long as they have not gone to final judgment or the statute of limitations has not expired.

Continue reading "Massachusetts SJC Expands Liability for Snow and Ice Slip and Fall Cases" »

The Foxboro Reporter reported today that a 62 year old bicycle rider was injured Sunday when he hit a pothole on Route 140 in Foxboro. John Polacek was wearing a helmet and riding properly with traffic when the pothole flipped his bicycle. Polacek landed on his head and suffered serious spinal injuries. He was airlifted to Massachusetts General Hospital.

The pothole had been there for months, according to a resident who lives near it. Crews would occasionally patch it "with a couple of shovels full (of asphalt)" but it would be "bad again in a couple of days." Even after the injury to Polacek, it took prodding by the Foxboro Reporter to get the pothole repaired. They discovered that it remained untouched and was not marked to warn drivers or riders of its danger a full two days after the incident, so they notified the state highway department. A crew was sent to repair the site that same day. Whether they completed the repair and how long it will last is not known.

We hope Polacek has hired a good attorney or at least gives the state notice of his injury within 30 days of last Sunday under the Massachusetts highway defect statute. As I blogged last week in Short Deadline Precludes Claim for Massachusetts Motorcycle Accident Injuries, meeting this unrealistically short notice requirement is essential to preserving your claim if you are injured by a defect relating to a road or sidewalk.

Continue reading "Another Massachusetts Road Defect Injury -- This Time a Bicycle Rider" »

The Massachusetts Supreme Judicial Court announced today that injured people will be allowed to introduce the full charges on their medical bills as evidence of their damages at trial despite the Superior Court's ruling otherwise. The case, Law v. Griffith, was argued by Kathy Jo Cook of KJC Law Firm LLC in Boston. Professor Timothy Wilton, from Suffolk University Law School, served as a consultant on both the brief and the oral argument.

Joanne Law was injured in an automobile accident when Daniel Griffith ran a stop sign and crashed into her car. By the time of the trial, Ms. Law had received extensive medical treatment for which the providers billed Ms. Law $112,269.94. Ms. Law's medical insurance provider, Mass Health, however, had paid the providers $16,387.14 in full satisfaction of those bills. Ms. Law was not personally responsible for any further payment.

The rates MassHealth will pay for medical treatments are set by statute and are far lower than that which doctors and hospitals charge. By law, providers are not permitted to bill the patient for the balance. Although private health insurers generally pay a higher rate than the government operated MassHealth, they also usually pay less than the amount the providers bill. People without health insurance, however, are responsible for payment of the full charge.

At trial, the defendant argued that the medical bills presented "distorted" evidence of Ms. Law's damages. The trial judge ruled that Ms. Law could not introduce evidence of the amount "charged" for any of the services, but rather, could only offer evidence of the amount "paid." Ms. Law was permitted to introduce only the payments of $16,387.14 as her medical expenses, rather than the charges of $112,269.94. The jury was instructed that it could award damages for "medical and hospital bills, as proved," as well as for scarring, loss of function, impairment of enjoyment of life, and pain and suffering. The jury found for Ms. Law, but in a general verdict for all of the items, it awarded only $48,500.00.

On appeal, attorney Kathy Jo Cook argued that the statute governing the admission of medical bills as evidence of an injured party's damages for medical expenses required a trial judge to allow the admission of medical bills in the full amount charged. The Supreme Judicial Court unanimously agreed, the majority writing that the statute "states unambiguously that medical bills are admissible to establish the reasonable value of services rendered."

Continue reading "KJC Law Firm Wins Important Personal Injury Case in the Massachusetts Supreme Judicial Court " »