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Attorney Curtis Dooling Serves as Panelist for MCLE Practicing with Professionalism Course

Wednesday, March 22, 2017

Pierce & Mandell, Curtis DoolingAll newly admitted lawyers in Massachusetts are required to take a one-day professionalism course within 18 months of admission. The day-long course, which is run by Massachusetts Continuing Legal Education (MCLE), covers a variety of topics, including ethics and professional conduct, court practice and successful attorney-client relationships.

MCLE recently invited Pierce & Mandell’s Curtis Dooling to sit on a lunchtime panel as part of the professionalism course. Dooling and three other panelists spoke to attendees and answered questions on such varied topics as balancing work and family, dealing with intransigent opposing counsel and career development.

On participating in the Practicing with Professionalism course, Dooling noted, “I found the discussion to be instructive and enjoyable and I was honored to be invited back by MCLE to be a panelist. I tried to provide some practical advice to the newly-admitted attorneys, advice I would have liked to receive when I was a newly admitted lawyer. The discussion focused on real-life issues, such as client relationships and career development, that aren’t taught in law school. I look forward to participating in more MCLE curricula in the future.”

Robert Kirby Argues Privacy Case in the SJC

Friday, March 10, 2017

Pierce & Madell, Boston, MA, Robert L. Kirby, JrBy Robert L. Kirby, Jr.

Ajemian v. Yahoo! Inc.: On March 9, Robert Kirby argued before the Supreme Judicial Court in a case of first impression. The issue before the Court was whether the federal Stored Communications Act, 18 U.S.C. 2701, et seq. bars providers of electronic communication services (in this case, Yahoo!) from divulging the contents of a deceased account holder's account to the personal representatives of the decedent. Read more here.

Dooling Wins Premises Liability Jury Trial in Berkshire County

Thursday, February 02, 2017

Curt Dooling recently obtained a defense verdict on behalf of his clients in a jury trial in the Pittsfield District Court in Berkshire County.

The plaintiff sustained multiple leg fractures after tripping over an entrance rug in a convenience store in Pittsfield, Massachusetts. Dooling represented the owner and operator of the convenience store. The plaintiff alleged that the entrance rug on which he tripped was defective because it failed to comply with American National Standard B101.6, the Standard Guide for Commercial Entrance Matting. The plaintiff also claimed that the store failed to properly secure the mat to the floor, which created a tripping hazard.

Before the trial began, Dooling filed a motion in limine to exclude any evidence regarding the size and type of the entrance rug on which the plaintiff tripped and whether the rug complied with any industry standard or regulation. The trial judge allowed Dooling’s motion in limine, and as a result, the plaintiff was foreclosed from presenting evidence in support of key elements of his theory of liability.

The jury deliberated for less than one hour and returned a defense verdict, determining that Pierce & Mandell’s clients were not negligent.

Supreme Judicial Court Takes Appeal in Case Involving the Stored Communications Act

Tuesday, December 20, 2016

Pierce & Madell, Boston, MA, Robert L. Kirby, JrBy Robert L. Kirby, Jr.

In Ajemian v. Yahoo!, we represent the personal representatives of an estate seeking to gain access to the contents of a decedent’s Yahoo! email account. The Probate Court ruled that the Stored Communications Act, 18 U.S.C. 2701 et. seq., prohibited Yahoo! from divulging the contents of the email account to the personal representatives. We appealed. The Supreme Judicial Court has, sua sponte, transferred the appeal from the Appeals Court. We expect the Supreme Judicial Court to hear the appeal in early 2017.

BOB PIERCE SUCCESSFULLY TRIES FOUR JURY CASES IN 2016

Thursday, December 15, 2016

Founding shareholder Bob Pierce took four cases to jury trials in 2016. The cases were tried in four separate superior courts: Essex (Newburyport), Middlesex, Suffolk, and Dukes County (Martha’s Vineyard). In three of the cases, Bob achieved defense verdicts on behalf of his clients; in the fourth, the case settled after several days of trial based on a payment of less than 10% of plaintiff’s pre-trial demand.

Two of the cases were tort cases with large claimed damages. In one case, the plaintiff suffered a herniated disc in her back, which was exacerbated by a botched surgery which required multiple surgeries to correct. The plaintiff had well over $300,000 in medical bills.  Despite the substantial damages and a sympathetic plaintiff, the jury returned a defense verdict for Bob’s client.

In the second tort case, the plaintiff claimed a serious brain injury, and over $1 Million in lost earnings.  Once again, the jury returned a defense verdict, awarding the plaintiff nothing.

The third case involved claims by the plaintiff that the defendants, one of whom was defended by Pierce & Mandell attorney Lena Finnerty, had made false statements to the police about the plaintiff’s actions. As a result of these alleged false statements, the plaintiff was arrested, and charged with crimes. The plaintiff’s arrest generated substantial publicity in Boston newspapers and TV news. The plaintiff claimed that the arrest and attendant publicity caused her to lose substantial money in connection with the business she ran. Specifically, plaintiff claimed well over $1 Million in lost income. However, as a result of rulings on motions in limine in favor of the defense, and the inability of the plaintiff to obtain favorable testimony from the six witnesses who testified at trial, the case settled for a modest amount that was a fraction of the pre-trial demand.

The fourth case was a product liability case in which the plaintiff lost his left eye. The case was tried on Martha’s Vineyard, and the plaintiff was very sympathetic because he had obviously suffered an extremely serious and life changing injury. After a trial spanning close to two weeks, the jury returned a verdict in Bob’s client’s favor and awarded the plaintiff nothing.

PIERCE and DOOLING WIN PRODUCT LIABILITY TRIAL ON MARTHA’S VINEYARD

Wednesday, December 14, 2016

Pierce & Mandell, Robert Pierce, Boston, MAPierce & Mandell, Curtis Dooling, Boston, MABob Pierce and Curt Dooling recently obtained a defense verdict on behalf of their client in a jury trial in Dukes County Superior Court on Martha’s Vineyard.

The plaintiff in the case sustained a serious eye injury, which eventually led to the loss of the plaintiff’s eye, when he was struck with a golf disc designed and manufactured by Pierce & Mandell’s client. The plaintiff claimed that the golf disc that struck and injured him was dangerously defective because of its design and because it lacked proper warnings alerting users to its dangers. The firm challenged the plaintiff’s credibility by showing that the plaintiff’s version of how he was injured was not credible based on witness testimony and relevant medical records. The firm also successfully argued that the golf disc was not dangerously defective.

The case was challenging due to the very serious injury that the plaintiff suffered, and the fact that the individual who threw the disc that struck the plaintiff was no longer living in the United States and was unable to testify at trial.  Rather, his deposition testimony was read to the jury.

The case was tried over 6 days, and the jury deliberated for approximately 7 hours. The jury determined that Pierce & Mandell’s client did not breach the warranty of merchantability and that the golf disc was not dangerously defective.

Bob Pierce has now achieved complete victory for his clients in the last eight jury cases that went to verdict.

Bill Mandell: Faculty at the MCLE Annual Massachusetts Health and Hospital Law Conference 12 years in a Row

Tuesday, December 06, 2016

Pierce & Mandell, PC, Bill Mandell, Boston, MAFor the 12th year in a row Pierce & Mandell, P.C.’s Bill Mandell, was a faculty member at the MCLE Annual Massachusetts Health and Hospital Law, 2-day conference on November 21 and 22, 2016.  Bill co-presented the panel on the law of physicians. He is also a co-author of the related MCLE publication, the Massachusetts Health and Hospital Law Manual. Bill just finished working on an update to the Chapter on Physicians and it will be published sometime next year when MCLE issues the 2017 edition of the Massachusetts Health and Hospital Law Manual. For more information about this publication, click here.

Changes to FLSA, if unimpeded, may have large repercussions for employers

Monday, December 05, 2016

Karen Rabinovici, Pierce and Mandell, PCBy Karen Rabinovici

The Fair Labor Standards Act (FLSA), which applies to all employees employed in the private sector as well as to government employees, establishes the minimum wage, overtime pay requirements, recordkeeping requirements, and child labor standards.  It was the FLSA that first introduced the forty-hour workweek, the concept of minimum wage, and time and a half for overtime work, along with prohibiting “oppressive child labor,” something that was common in 1938 when the FLSA was first drafted.

The Department of Labor has long tried to make changes to the FLSA’s overtime regulations, and the fruits of its labor may be just around the corner, and were set to go into effect December 1, 2016.  The changes, however, are not without opposition, and the fate of the changes is currently on hold.  The changes, should they go forward, may impact dental and medical practice employers in particular, who often find themselves in murky waters when classifying employees as exempt or non-exempt.

The Changes

In determining which employees are exempt from receiving overtime pay and which employees are not exempt, the FLSA takes earned compensation into account.  Under the old rule, if executive, administrative, and professional employees earned less than $455 per week, or $23,660 per year, such employees were not exempt from receiving overtime pay.  The new rule changes those benchmarks to $913 per week, or $47,476 per year, increasing the number of non-exempt employees.  Additionally, under the old rules, employees who are exempt from receiving overtime pay under provisions relating to “highly compensated employees” must be paid $134,004 per year, up from $100,000, again increasing the number of non-exempt employees.

The new rule will prompt employers to make necessary changes to their classification of executive, administrative, and professional employees.  If an employee’s salary no longer meets the new minimum requirements, and another exemption does not apply, reclassification may be necessary, accompanied by overtime pay.  Alternatively, employers may increase salaries to maintain exemptions.

The Challenge

In an 11th hour plot twist, on November 22, 2016 the U.S. District Court in Sherman, Texas issued an order enjoining the Department of Labor from implementing the new rule.  Prior to this, 21 states filed an emergency motion for a preliminary injunction to stop the new rule, arguing that the Department of Labor has exceeded its authority in increasing the salary minimums for exempt employees.  Additionally, the fact that the changes do not take the nature of employee duties into account, which can often determine whether an employee is exempt or non-exempt, has been another argument of the new rule’s opponents.  A date for a full ruling by the Court has not yet been announced.  So, until the Court rules on the Department of Labor’s authority to implement such changes, employers do not need to comply with the new rule and can maintain the status quo.

Pierce & Mandell’s experienced employment law attorneys can guide employers and workers through the classification and employment process.  We encourage employers and workers alike to contact us to ensure that terms of employment are compliant with the relevant laws.

Attorney Curtis Dooling Participates in MCLE Practicing with Professionalism Course

Friday, December 02, 2016

On November 14, 2016, Pierce & Mandell attorney Curtis Dooling participated in a lunchtime roundtable discussion for approximately 100 newly admitted lawyers in a program sponsored by Massachusetts Continuing Legal Education (MCLE).

Pursuant to Supreme Judicial Court Rule 3:16, newly admitted lawyers in Massachusetts must take a one-day professionalism course within 18 months of admission. During the day-long course, new lawyers attended seminars and training on a variety of topics, including ethics, court practice and successful attorney-client relationships. During the lunch session of the program, Dooling and three other experienced attorneys, two of whom practiced civil law and two of whom practiced criminal law, presented for nearly one hour. Dooling and his fellow panel members answered questions from attendees on all manner of practical legal issues like developing good relationships with clients, balancing work and family life and dealing with judges and court personnel.

On participating in the Practicing with Professionalism course, Dooling noted, “I found the discussion to be enlightening and enjoyable. I hope I was able to provide some practical advice to the newly-admitted attorneys. The discussion focused on real-life issues that lawyers must deal with that unfortunately aren’t taught in law school. The MCLE does a great job in running the program.”

Liability Waivers and Releases – Who and What is Being Released - Boston, MA

Thursday, December 01, 2016

Pierce and Mandell, PC. Boston, MAby Curtis Dooling

Superior Court Judge Dennis Curran recently allowed the estate of a man who died at a YMCA facility to proceed with a wrongful death claim against the YMCA even though the decedent signed a liability release. The decedent, who was participating in an elderly exercise program at the YMCA, was found unconscious in a steam room. YMCA employees could not access the control room to shut off the steam heat. The decedent experienced catastrophic burn injuries and died shortly after being transported to the hospital.

The decedent signed a release absolving the Silver Sneakers program from all liability. The Silver Sneakers program was an elderly exercise program that encouraged seniors to join the YMCA to exercise. The program was operated by the YMCA at a YMCA facility. Although the release had broad and somewhat ambiguous release language, it did not specifically mention the YMCA as a released party. Thus, the court held that the plaintiff’s claims against the YMCA and its employees were not barred by the release. The court also held that the release did not bar claims for gross negligence because these claims were not specifically mentioned in the release.

This case demonstrates the importance of the language of a liability release. Liability releases and waivers are ubiquitous in modern society. Businesses often make patrons sign releases to protect against claims and lawsuits. However, as this case makes clear, poorly and vaguely written releases won’t stand up in court. It is vitally important to ensure that liability releases and waivers are carefully drafted to release the numerous potential claims that could be brought and to identify the parties being released as anyone or anything that is involved in any way in owning, managing or working at a business, facility or event.

Pierce & Mandell’s litigators have years of experience advising and representing businesses in risk and claims management and have litigated countless cases involving liability waivers and releases.


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