Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

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

Insurance Defense and Litigation

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Pierce & Mandell Attorneys Achieve Defense Verdict

William M. Mandell - Wednesday, September 21, 2016

Bob Pierce and Lena Finnerty obtained a defense verdict on behalf of their client in a jury trial in Middlesex Superior Court that concluded on September 19, 2016.

The plaintiff in the case claimed that he suffered serious head injuries when he fell on black ice in the parking lot of the office park owned by Pierce & Mandell’s clients.  Plaintiff claimed in excess of $1 Million in lost earning capacity, and asked the jury for an award of over $4 Million.  The firm defended the case on the basis that the property owner client was not negligent, and that if the plaintiff did fall on black ice, the fall was caused by his own negligence.

The case was tried over 7 days, and the jury deliberated for approximately 2 ½ hours.  The jury determined that Pierce & Mandell’s client was not negligent, and the plaintiff was awarded nothing.

Bob Pierce has now achieved complete victory for his clients in well over 80% of the cases he has tried.

Massachusetts Appeals Court Extends Workers’ Compensation Bar to “Alternate Employers”

William M. Mandell - Friday, November 06, 2015

by Paul Hourihan, Pierce & Mandell, P.C.

The Massachusetts Appeals Court recently extended the bar on liability provided in the Massachusetts Workers’ Compensation Act, G.L. c. 152, § 1, et seq., to protect employers whose employees are provided by a separate staffing entity. The Massachusetts Workers’ Compensation statute requires employers to obtain workers’ compensation insurance for all employees to ensure that employees injured during the course of their employment will be adequately and expeditiously compensated.  The statute also provides that, on the other hand, workers injured on the job cannot sue their employer for negligently causing the accident.

This statute has created a bit of an ambiguity in the context of the temporary workers provided by staffing companies. When a company needs extra manpower (or womanpower), and contracts with a staffing company for temporary employees, nothing in the Workers’ Compensation Act prevents an injured temporary employee from suing the temporary employer, regardless of coverage under an insurance policy.

The Massachusetts Appeals Court, in Molina v. State Garden, Inc., 88 Mass. App. Ct. 173 (Sept. 3, 2015) recently ruled that the Workers’ Compensation Act will serve to bar the claims of an injured employee against a temporary employer when (1) the temporary employer works at the direction of the temporary employer and (2) the temporary employer is afforded workers’ compensation insurance coverage under an “alternate employer endorsement” of the staffing company’s insurance policy. The “alternative employer endorsement” of the policy will serve to cover a temporary employee’s accident and will provide the temporary employer the protections of the Workers’ Compensation Act.

This ruling serves as an exhortation to any employers who contract for employees from staffing companies: insist that any staffing company provide an “alternate employer endorsement” naming your company as an alternate employer. Doing so will protect your temporary employees and will protect your company from lawsuits.

Paul Hourihan is an associate at Pierce & Mandell who handles claims for workplace accidents and injuries.

Pro Hac Vice Counsel; Only as Good As Their Local Counsel

William M. Mandell - Thursday, March 26, 2015

By: Dennis Lindren

Pursuant to G.L. c. 221, §46A, out of state counsel may seek permission to practice law temporarily in Massachusetts pro hac vice.   While the provisions of that particular statute clearly allow the Court wide discretion in deciding a pro hac vice motions (see e.g. Diluzio v. United Electrical, Radio and Machine Workers of America, Local 274, et al., 391 Mass. 211 (1984), in practice, opposing counsel rarely oppose, and the Courts routinely grant, pro hac vice motions to out of state counsel who satisfy the requirements of the statute.  The operative question then is not whether out of state counsel can represent their clients in Massachusetts Courts, but whether the best interests of the client are advanced by doing so.

To even the most experienced out of state lawyer, the legal landscape in Massachusetts can be confusing, if not somewhat intimidating.  From the unique procedural requirements of Superior Court Rule 9A, to the considerable remedies (in theory) allowed pursuant to the Massachusetts Consumer Protection statute, G.L. c. 93A, developing a basic understanding of Massachusetts law in any given practice area is no small task.  In addition, there are very important cultural, economic and geographic considerations unique to Massachusetts to be taken into account in formulating litigation and trial strategy that the uninitiated lawyer may likely overlook to their client’s detriment.  In short and not surprisingly, there is a considerable home field advantage for the client who is represented by a Massachusetts attorney in a Massachusetts action.

Nevertheless and for a variety of reasons, it often makes sense (or the client simply prefers) that their out of state counsel seek to be admitted pro hac vice.   In such instances, the first and most critical step is to identify and retain experienced, local trial counsel.  Not only are local counsel required to enter an appearance in the matter and sponsor the pro hac vice motion, but much more importantly, when allowed, they act as procedural guides and local legal experts, invariably saving the client time and money in the prosecution or defense of their action.  At Pierce & Mandell, P.C., we are experienced trial lawyers who try cases.  We have broad experience trying the most sophisticated civil litigation matters.  We have worked with a variety of small, medium and large out of state firms, both as co-counsel and local counsel, in the prosecution and defense of civil actions here in the Commonwealth.  If your client is in need of Massachusetts counsel, or you are in need of local counsel to sponsor your pro hac vice motion, please contact Dennis Lindgren at (617) 720-2444.

Bob Pierce tells Boston Business Journal to Expect a Major Spike in Winter-Related Litigation - Boston, MA

William M. Mandell - Friday, March 06, 2015

Seasoned Pierce & Mandell litigator and founding partner Bob Pierce may not get his NCAA Final Four Championship bracket exactly right, but he was pretty confident when reached by The Boston Business Journal this week about the effect of this biblical winter on future litigation.  Unlike some past winters that were relatively mild with minimal snow and ice events, Pierce said that this year’s historic winter will inevitably lead to more litigation, predicting a 50 percent increase in winter related claims.

“By the summer we’ll see a spike in litigation,” the veteran attorney told the Boston Business Journal’s Greg Ryan, whose story describes this winter as ‘snowmaggedon.’

SJC Announces Interim Procedure for Attorney and Self-Represented Party Participation in Juror Voir Dire

William M. Mandell - Thursday, December 11, 2014

by Robert R. Pierce and Curtis B. Dooling

On December 5, 2014 the Massachusetts Superior Court issued a standing order outlining interim procedures governing attorney-conducted voir dire in Superior Court civil and criminal trials. The standing order was issued in anticipation of the implementation of G. L. c. 254, § 2, which will go into effect on February 2, 2015. Although trial judges will still have discretion as to how attorneys conduct voir dire, this Standing Order represents a significant change in Massachusetts trial practice. Massachusetts, unlike most states, has never before permitted attorneys to directly question jurors. Attorneys will now have an opportunity to pose questions directly to jurors in an effort to uncover biases and to learn more about the background of potential jurors.

The Standing Order dictates the specific procedures attorneys must follow to conduct voir dire. For example, attorneys will be required to seek approval from the court as to the topics of questions posed to potential jurors and, in some cases, will be required to seek court approval regarding the wording of questions. Attorneys will be required to comply with Superior Court Rule 9A when serving and filing motions to conduct voir dire. Thus, attorneys will need to consider voir dire questions well before trial begins.

The Standing Order provides the trial judge with wide discretion in determining which questions attorneys will be permitted to ask and the manner in which the questions will be asked. The Standing Order also outlines topics which will generally be allowed (background, experience, bias, ability to listen to judge’s instructions) and those topics which will be disfavored (political views, religious beliefs, hobbies, participation as a juror in other cases) unless a specific showing is made that the topics are germane to the case.

The Standing Order, which goes into effect on February 2, 2015, will likely be superseded by rules established by the Supreme Judicial Court. However, at this point it is unclear when the Supreme Judicial Court will issue final rules implementing G. L. c. 254, § 2. Thus, trial attorneys must familiarize themselves with the new Standing Order and must be prepared to seek court approval for voir dire questions in advance of trial.

Plaintiff’s attorneys, who strongly supported the passage of G. L. c. 254, § 2, may not be content with the amount of discretion that trial judges have to control the types of questions attorneys may ask jurors. The plaintiff’s bar will likely urge the Superior Court to modify the Standing Order to provide more latitude to trial attorneys in conducting voir dire.

For example, Pierce & Mandell attorneys Bob Pierce and Curt Dooling recently received a pre-trial request from a plaintiff’s attorney to ask potential jurors the following questions:

  • Do you believe that there are too many big verdicts and/or jury awards to injured persons in the Courts? How have you come to that belief?
  • Some people believe that you should not receive money damages for injuries or pain and suffering. Other people feel it is appropriate. Which one of those groups are you closer to?

Based on the Standing Order, a judge has discretion not to permit these types of questions to be asked by plaintiff’s attorneys because they delve too far into a juror’s political beliefs. Whereas the plaintiff’s bar views these biases as an impediment to a fair and impartial jury.

Changes to Voir Dire and Damages Requests

William M. Mandell - 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

William M. Mandell - 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

William M. Mandell - 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

William M. Mandell - 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

William M. Mandell - 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.


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