Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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Changes to Voir Dire and Damages Requests

Tuesday, September 09, 2014
CHANGES TO SUPERIOR COURT TRIAL PROCEDURE IN MASSACHUSETTS:
ATTORNEY CONDUCTED VOIR DIRE AND SPECIFIC DAMAGES REQUESTS

By: Robert Pierce and Natalia Smychkovich

        On August 6, 2014, Governor Patrick signed House Bill 4123, the “Trial Court Bill,” altering two Massachusetts statutes concerning trial procedure at the Superior Court level.  The new law, effective February, 2015, will substantially alter jury trial practice in two ways: first, attorneys will be permitted to question jurors during the impanelment process and second, counsel will be permitted to propose a specific dollar amount of damages to the jury during trial.

I.    M.G.L. CHAPTER 234, SECTION 28: ATTORNEY CONDUCTED VOIR DIRE
        Prior to the passage of this bill, Massachusetts remained the only state in New England, and one of the few states nationwide, that did not permit attorney-conducted voir dire.  Voir dire is the questioning of prospective jurors by a judge or attorneys in court prior to trial.

        Currently, the process of voir dire in Massachusetts is controlled by the judge in any given trial.  As a way of screening for bias, a basic questionnaire is provided to jurors before they appear for jury duty.  During impanelment, in a typical case, only the judge is permitted to ask the potential jurors any questions during the selection process.  Most judges are receptive to asking the panel or specific potential jurors questions that the attorneys want to be asked.

        The recently signed bill modifies the statute governing voir dire practices, M.G.L. c. 234, §28, in pertinent part, as follows:

(1)  In addition to whatever jury voir dire of the jury venire is conducted by the court, the court shall permit, upon the request of any party's attorney or a self-represented party, the party's attorney or self-represented party to conduct an oral examination of the prospective jurors at the discretion of the court.
 (2)  The court may impose reasonable limitations upon the questions and the time allowed during such examination, including, but not limited to, requiring pre-approval of the questions.

        Essentially, the procedure has been changed to allow attorneys the benefit of direct examination of potential jurors prior to selection.  The statute language is open-ended in a way that allows the courts to maintain reasonable control over the process.  The court policies, practices and procedures remain unclear at this time, and there will undoubtedly be a learning curve as the new practices are adopted.  Many questions are left to be answered:
  • Will attorneys be questioning the potential jurors individually at sidebar or as a group in open court?  
  • Will opposing counsel be afforded the opportunity to raise objections to certain questions?
  • Will the judge, as is the case in some states, leave the court room during voir dire?

        Approximately one week after the bill was signed, the Massachusetts Supreme Judicial Court formed a committee to work with the Superior Court to develop procedures for the implementation of the new statute.

        Support for the new statute came primarily from the Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys.  Recent studies have shown that Massachusetts has one of the lowest plaintiff personal injury win rates in the nation. Plaintiffs’ attorneys have voiced concerns that the public has grown suspicious of lawsuits due to a growing perception that many lawsuits are frivolous and unfounded, and that many potential jurors may be unintentionally biased against plaintiffs.  The plaintiffs’ bar and other supporters of the act hope that the new measure will provide attorneys and judges with more information about potential jurors, reducing prejudices and making Massachusetts a more plaintiff-friendly state.  On the other hand, as defense counsel, we will have an equal opportunity to expose “pro-plaintiff” jurors.

        Additional emphasis will now be placed on jury selection and more time will be spent writing effective voir dire questions.  Jury verdict research may be beneficial in helping attorneys utilize this new procedure in an efficient way.  In addition, Pierce & Mandell attorneys will be reaching out to fellow defense lawyers in other states to explore best practices for attorney-conducted voir dire.  While the bulk of cases will continue to resolve through summary judgment or settlement, the new voir dire procedure will certainly increase trial costs.

II.    M.G.L. CHAPTER 231, SECTION 13B: REQUEST FOR SPECIFIC AMOUNT OF DAMAGES

As part of the same bill, an amendment was made to M.G.L. c. 231, §13B. The following sentence has been added to the statute: “In civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.”  Prior to this addition, the statute read,
No complaint in any civil action shall contain an ad damnum or monetary amount claimed against any defendant, unless such ad damnum or monetary amount claimed indicates damages which are liquidated or ascertainable by calculation and a statement under oath by a person having knowledge thereof is attached to such complaint setting forth the manner in which the amount of said damages was calculated. For the purposes of this section complaint shall include a claim, crossclaim or counterclaim.

Simply stated, in personal injury cases, juries were previously presented with monetary amounts for special damages such as medical expenses and lost earning capacity, but were left without guidance as to what amount (if any) should be awarded for intangible damages such as pain and suffering, loss of companionship, disfigurement, etc.  Typically, in their closing arguments, plaintiffs’ lawyers would specifically list the special damages, and then tell the jury that they should award a substantial amount for pain and suffering, and to use their common sense in arriving at an award

Several questions remain to be answered. First, to what extent will the plaintiffs’ bar overreach, meaning request an unreasonably high sum? Certainly, such a strategy could backfire on plaintiffs. In cases where the plaintiff prevails, will juries award the amount requested, or some lesser (or greater) amount?  Given the general sentiment regarding personal injury lawsuits in Massachusetts, juries very well may be aggravated by obviously inflated dollar amounts suggested by attorneys, possibly leading to lower awards for plaintiffs.

Also, it is unclear whether the amount plaintiffs are requesting will be disclosed in discovery, or at a minimum, prior to closing arguments.

While more emphasis will be placed on proving what amount of money intangible damages such as pain and suffering are worth, it is not generally our practice to counter amounts suggested by plaintiff’s counsel.  As a practical matter, for most of the cases that Pierce & Mandell tries, the focus of our defense is on liability rather than damages.  In other words, in a typical case, we are seeking a defense verdict rather than attempting to limit the damages award.  Of course, in a high exposure, likely liability case, more time would be spent on breaking down the plaintiff’s damages claims.

Sheehan Case Alters Scope of Strict Premises Liability

Thursday, July 10, 2014

A recent decision by the Massachusetts Supreme Judicial Court alters the scope of M.G.L. ch. 143, § 51, which creates strict liability for injuries resulting from a violation of the Massachusetts Building Code.  In William Sheehan vs. David B. Weaver, et al., 467 Mass. 734 (2014), the SJC did away with an antiquated distinction in the interpretation of M.G.L. ch. 143, § 51, which held that strict liability for injuries resulting from a violation of the Massachusetts Building Code could be found only in circumstances in which a plaintiff was fleeing a fire in a stairwell or egress in premises owned or controlled by a defendant.  The SJC acknowledged that this interpretation was based on an outdated version of the statute, which previously focused on fire safety.  The SJC ruled that building code violations can lead to strict liability for injuries occurring outside of that narrow context.

However, the SJC also ruled that the legislative intent of the statute was to protect large numbers of people from building code violations in publicly-accessed spaces.  In Sheehan, the plaintiff was injured in a strictly residential section of a building which housed both residential condominiums and a chiropractor’s office.  Because the particular area in which the plaintiff was injured was not public or commercial in nature, M.G.L. ch. 143, § 51 did not apply to the plaintiff’s claim.  Thus, the SJC simultaneously expanded and limited the scope of M.GL. ch. 143, § 51.

Pierce & Mandell counsel Paul Hourihan recently invoked the Sheehan case in defeating an attempt by a plaintiff to add a claim for strict liability under M.G.L. ch. 143, § 51 for injuries which allegedly occurred as the result of a code violation in a church basement.  Because the alleged injuries occurred outside of publicly-accessed areas, the Middlesex Superior Court ruled that M.G.L. ch. 143, § 51 did not apply to the church basement and, accordingly, the plaintiff’s claim for strict liability was futile.   Alphonse Womack v. Lifepoint Church, et al., Essex Superior Court, Civil Action No. ESCV2012-02328.

Pierce Mandell Secures Important Appellate Victory Case Involving Disparate Fault Theory of Common Law Indemnity

Tuesday, October 01, 2013

Pierce & Mandell, P.C. has secured an important appellate victory for a subcontractor and buyer of industrial scaffolding equipment in the appeal of a dismissal of the indemnity claims the equipment’s manufacturer.  

In Fraco Products, Ltd., et al. v. Bostonian Masonry Corp., the Massachusetts Appeals Court addressed whether or not the trial court erred in dismissing the indemnity claims of the manufacturer of industrial mast-climbing scaffolding equipment that collapsed on Boylston Street in Boston in April 2006.  In its appeal, the manufacturer sought indemnity for the amount it paid to settle to the claims filed by the estate of an employee of the purchaser who was killed in the accident.  

Robert Pierce, a shareholder at Pierce & Mandell, argued successfully for the defense.  

Among the issues addressed by the Appeals Court was the so-called “disparate fault” theory of common law indemnity.  In general, a party who is at fault for an injury is not entitled to common law indemnity from another negligent party.  However, under the “disparate fault” theory, a party whose negligence in connection with a particular injury is relatively small as compared to that of another party may seek indemnification from the party who is disproportionately at fault for the same injury.

The opinion of Justice Katzmann, who wrote for the panel of three justices, stated “[a]lthough the Supreme Judicial Court has adverted to the differing degree of fault theory in two modern decisions, see Rahthbun, Western Mass. Elec. Co., 395 Mass. 361 (1985), and Economy Engr. Co. v. Commonwealth, 413 Mass. 791 (1992), in neither case was indemnification allowed.   Moreover, a review of the cases cited in Rathbun reveals only one case, more than a century ago — before the existence of statutory contribution and workers’ compensation — in which the court allowed indemnification to one of two joint tortfeasors based on differing degrees of fault.”  The Appeals Court, instead, applied the general rule that a party who is at fault for an injury is not entitled to common law indemnity and upheld the dismissal of the claims of the manufacturer.

In so ruling, the Appeals Court determined that the plaintiff manufacturer was not entitled to a new trial to ascertain whether or not its negligence was of the small amount contemplated by the “differing fault” theory of common law indemnity.  The Appeals Court also ruled that no common law indemnity obligation could be inferred from the buyer-manufacturer relationship of the parties, and that the contractual indemnity claims of the manufacturer also failed as a matter of law.
 
Pierce & Mandell has broad experience in the most sophisticated insurance defense, catastrophic injury and construction related litigation, and we routinely handle high value trials and appeals where cutting edge legal issues in these fields are determined.

Interest On Tort Judgments for Personal Injury and Property Damage Claims - Boston, MA

Monday, March 11, 2013
By: Thomas E. Kenney

In Massachusetts, interest on tort cases is governed by two statutes, one providing for pre-judgment interest, and one governing post-judgment interest.  G.L. c. 231, § 6B provides that where a plaintiff recovers in a personal injury claim or property damage claim, the clerk shall automatically add interest to the recovery in the amount of twelve percent per annum for the period from the date of filing the complaint until the date of judgment.  This is simple interest, with no compounding.  Thus, by way of example, if the plaintiff filed suit on January 1, 2012 and recovered a jury verdict in the amount of $100,000 on December 31, 2012, the clerk would automatically add $12,000 to the award for pre-judgment interest, and enter judgment in the amount of $112,000 plus any litigation costs and/or attorneys fees awarded.

G.L. c. 235, § 8 provides that interest on judgments shall run at the same rate as pre-judgment interest accrued on the judgment.  Thus, for personal injury and property damage claims post-judgment interest runs at the rate of twelve percent annum, with no compounding.  In other words, the interest runs post judgment at the rate of one percent (1 %) per month of the total amount of the judgment.  Because the judgment amount includes pre-judgment interest, and post-judgment interest is calculated on the entirety of the judgment, post-judgment interest includes interest on interest – that is interest on the pre-judgment interest awarded.  In addition, to the extent that the judgment includes amounts awarded for litigation costs and attorneys fees, post-judgment interest accrues on those amounts at the same rate.  Thus, under the example in the prior paragraph, assuming a jury verdict of $100,000, pre-judgment interest of $12,000, and litigation costs of $8,000, the clerk would enter a judgment in the amount of $120,000.  Post-judgment interest would run on the entire $120,000 judgment at the rate of twelve percent per annum, or $1,200 per month.      

The litigation attorneys at Pierce & Mandell have a wealth of experience in all facets of tort litigation, including personal injury cases and property damage cases.  Please contact Bob Pierce at 617-720-2444 if you have any questions, or would like to discuss a potential tort litigation matter.

Dennis M. Lindgren named "Rising Star" by Super Lawyers 2012

Wednesday, January 02, 2013

Pierce & Mandell, P.C. congratulates our newest partner, Dennis M. Lindgren, on being named a "Rising Star," in the practice of Plaintiff's Personal Injury law by Super Lawyers 2012, a joint publication of Boston Magazine and Reuters.

Rising Stars are those attorneys under the age of 40 who have been nominated by peers for excellence in their chosen practice area.  Candidates are then evaluated utilizing twelve indicators of peer recognition and professional achievement.  

No more than 3% of eligible lawyers in Massachusetts are named to the Rising Star list each year.  We are proud that Dennis has been inducted into this elite group for the second straight year.

For assistance with your potential personal injury claims, contact Pierce & Mandell, P.C. or Dennis M. Lindgren.

Out of State Driver’s Damages not Offset by Personal Injury Protection

Tuesday, December 18, 2012

In Massachusetts, every insured driver carries their own personal injury protection coverage ("PIP") which, regardless of fault, will cover some portion of that person's medical bills and lost wages (anywhere between $2,000.00 and $8,000.00, depending upon the circumstances). When those drivers are injured by the negligence of another driver, and seek compensation through a personal injury claim, defendant drivers and their insurance companies have typically relied upon what is known as a “PIP offset”, as provided in Massachusetts General Laws chapter 90, §34M, which exempts a defendant from tort liability to the extent of PIP benefits available to an injured plaintiff. 

In practice, the PIP offset allows the defendant's insurer to deduct from a verdict any moneys spent by the plaintiff's PIP carrier on his or her behalf.  For example, if a plaintiff was awarded $50,000.00 in a motor vehicle personal injury case, but received $8,000.00 in PIP benefits, the defendant's insurer would be entitled to an offset (or credit) of $8,000.00, and would only be liable to the plaintiff for $42,000.00 (excluding interest).  Even where a plaintiff attempts to settle their claims before initiating litigation, insurance companies often invoke the PIP offset to justify what otherwise might be an unreasonably low offer.  PIP offsets are therefore just one of many traps awaiting the unwary who are unfamiliar with motor vehicle and personal injury litigation, and the claims settlement process.

Recently, however, Massachusetts courts have begun to limit the scope of the PIP offset.  According to a recent Appellate Division ruling, an out of state motorist whose insurance did not have PIP benefits, but whose negligence caused injury to another driver in Massachusetts, was not entitled to have the injury victim’s damages offset by the amount of PIP benefits the victim received from his own insurer.  See DiStefano v. Jovet, Lawyers Weekly No. 13-060-12. 

This is an important development, especially in the Northeast where automobile travel is common between a large number of states, all with their own unique insurance laws.  Frequently out of state drivers are involved in motor vehicle accidents here in Massachusetts, and in such instances, those who do not carry PIP coverage may not be entitled to the offset.  For the moment, whether the Appellate Division's recent opinion in DiStefano results in out of state insurers ending their practice of invoking the PIP offset remains to be seen.  Regardless, an informed claimant with knowledgeable counsel needs to be prepared to confront these, and other intricacies of the personal injury claims settlement process.

If you have been involved in an accident where PIP coverage is in question, contact Pierce and Mandell, P.C.

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