The History of Proceedings

Allegedly, the plaintiff, the wife of a deceased smoker, brought wrongful death claims against the defendant, the cigarette manufacturer. The complaint alleged, among other things, that the defendant caused the plaintiff’s husband’s death by selling unreasonably dangerous and defective cigarettes. The case proceeded to trial, and the jury found in favor of the plaintiff. The court entered a judgment in the plaintiff’s favor, and the defendant appealed.

Claim Preclusion Under Massachusetts Law

On appeal, the defendant argued that the plaintiff’s claims were precluded by a previous settlement agreement between the State Attorney General and the defendant. The appellate ultimately disagreed and affirmed the trial court ruling.

The appellate court explained that, pursuant to Massachusetts law, the doctrine of claim preclusion renders a final, valid judgment conclusive on the parties and their privies. As such, it prevents them from relitigating matters that were or could have been decided in the previous action. The doctrine arises out of the idea that the party to be precluded had the motive and opportunity to fully litigate the issue in the initial lawsuit.

A party arguing claim preclusion applies must establish three elements: the privity of parties in the prior and current action, the identity of the cause of action, and a previous final judgment on the merits. In the subject case, the appellate court found that the plaintiff was not in privity with the Attorney General in the previous matter. Specifically, the court explained that the plaintiff sought punitive damages under the wrongful death statute in the current case, and the interest in such damages was not represented in the prior proceeding. As such, her claims against the defendant were not precluded, and the appellate court denied the defendant’s appeal.

Contact a Lawyer in Massachusetts About Your Case

Companies have an obligation to warn consumers of the risks associated with the use of their products, and if they do not, they should be held accountable. If you were hurt by an unsafe product, you should contact a lawyer to discuss whether you may be owed damages. The dedicated wrongful death attorneys of The Law Offices of John C. Manoog, III, can assess the circumstances surrounding your harm and advise you regarding what compensation you may be able to recover. You can contact us through our form online or at 888-262-6664 to set up a meeting.

Usually, trespassers are owed a lower duty of care than those who are on another’s property with permission. However, this is not always so.

Facts of the Case

In a recent (unreported) appellate case, the plaintiffs were the administrators of the estate of a 17-year-old high school student who drowned in a swimming pool that belonged to the defendant city. According to the record on appeal, the student was a trespasser and gained access to the pool through the girls locker room (an area in which had no authority to enter). The depth of the water was not marked on the pool, and the student was not able to swim. In their wrongful death lawsuit, the plaintiffs sought compensation based on a theory of negligence and premises liability. The defendant filed a motion seeking summary judgment as to the plaintiffs’ claims against it. The trial court granted the motion, and the plaintiffs appealed.

The Decision of the Appeals Court

The Commonwealth of Massachusetts Appeals Court reversed the lower court’s order granting summary judgment and remanded the matter for further proceedings. In the appellate court’s view, the primary question was whether the student both knew of and understood the risks that were posed by entering an area with an unguarded swimming pool. Although the lower court answered the question in the affirmative in granting summary judgment to the defendant, the reviewing court disagreed with this result. Rather, the appeals court held that the question at hand was one of fact, not law, and should have been reserved for the jury’s determination at trial.

In so holding, the court of appeals acknowledged that, under Massachusetts law, a landowner’s duty to a trespasser is not the same as his or her duty would be to someone who was on the subject property with the landowner’s permission or implied consent. Generally speaking, in the case of a trespasser, the landowner only owes a duty to avoid wanton and willful conduct. However, the court went on to point out that, when the trespasser in question is under the age of 18, landowner owes a more heightened duty. Because children and youth may not realize the risks involved in certain dangerous situations, landowners owe a duty of taking reasonable care to avoid harm to them.

Call a Wrongful Death Lawyer in Cape Cod

If you have lost a loved one in a swimming pool accident, the Law Offices of John C. Manoog III can help you explore the possibility of filing a claim for wrongful death against the owner of the property upon which the pool was located. To schedule a free consultation to learn more about your legal rights and the process of seeking compensation in a court of law, call us at 888-262-6664 or contact us through this website. We have offices located in both Hyannis and Plymouth, and we serve all of the Cape Cod area.

Sometimes, a mistake was obviously made, but the doctor insists that his or her error did not harm the patient in any meaningful way. This argument is especially prevalent in cases involving a missed diagnosis.

In such cases, the plaintiff believes that, had a proper diagnosis been made in a timely fashion, he or she would have had more treatment options and/or a better outcome of the illness that the doctor somehow missed. In turn, the physician is likely to claim that the illness – and the ultimate result thereof – was bound to happen anyway, such that his or her mistake should not result in monetary compensation to the patient or his or her family.

Facts of the Case

In a recent appellate case, the plaintiffs alleged that the defendant physician had committed malpractice by failing to perform a proper examination and/or discuss the possibility of certain further testing on the male plaintiff (who was joined in the litigation by a family member, presumably his spouse) during an appointment in 2010 and that, as a result, the plaintiff’s prostrate cancer was not detected for some two years. The case was tried to a jury and resulted in a special verdict finding, among other things, that the plaintiffs had proven $0 in damages, even though the defendant’s failure to discuss the test had caused harm to the male plaintiff. The plaintiffs appealed from that judgment.

The Appellate Court’s Opinion

The Commonwealth of Massachusetts Appeals Court affirmed the trial court’s ruling. On appeal, the plaintiffs insisted that they were entitled to an additur because their damages had been “so incontrovertibly proven” that the jury’s verdict could not stand. In rejecting this request that a more reasonable damages award be assessed against the defendant, the reviewing court noted that the plaintiffs were not entitled to pursue a theory of damages during the appellate process that was not fairly presented during the trial of the case to the jury.

In the appellate court’s view, the plaintiffs were attempting to raise a new theory on appeal, namely that the male plaintiff was entitled to damages resulting from the burden of his alleged need to undergo more extensive medical treatment because of the delay in his diagnosis resulting from the defendant’s medical negligence. In affirming the $0 verdict entered in the court below, the court noted that there had been expert testimony at trial to the effect that, because of the inherently aggressive nature of the plaintiff’s particular cancer, the delayed diagnosis did not result in any difference concerning his treatment or prognosis. In other words, in the expert’s opinion, the plaintiff’s outcome depended only on how the cancer responded to treatment – not to when exactly it was discovered.

Schedule an Appointment to Discuss a Possible Medical Malpractice Case

Medical malpractice cases are often hard-fought. Doctors abhor any implication that they made a mistake that harmed a patient or cost a patient his or her life, and the insurance companies that represent those in the medical profession do not like to pay out settlements or verdicts. Having an effective legal advocate in your corner is essential if you feel that you are owed compensation for a healthcare provider’s mistake. If you need to talk to an experienced Cape Cod wrongful death attorney about a possible missed diagnosis or other act of medical negligence, the Law Offices of John C. Manoog III can help. Call us at 888-262-6664 to schedule a complimentary case evaluation today.

Of course, this assumes that the case ultimately makes its way into a courtroom and is tried in front of a judge and jury. It is important to note that there are a lot of steps that may occur before this happens.

First and foremost, the court in which the suit is filed must have jurisdiction over the case. This encompasses both the right to adjudicate the subject matter of the suit and also power over the particular defendants, a concept known as “personal jurisdiction.”

Facts of the Case

In a recent federal case, the plaintiff was a woman who lost both her husband and her son in a drowning accident in Montreal, Canada, in 2016. The husband died immediately, but the son was pronounced brain dead and died sometime later. Suing both individually and administratrix of the estate of the husband and son, she sought compensation from the defendant hotel owners (who owned the pool where the drownings occurred). The plaintiff’s wrongful death lawsuit was filed in 2018 in a Massachusetts state court. One of the defendants was a Canadian corporation, one was a Delaware corporation, and one was a Maryland corporation. In addition to the wrongful death claims, the plaintiff also asserted causes of action for conscious pain and suffering of the son who died and negligent infliction of emotional distress on behalf of her two surviving children, who witnessed the drownings.

The defendants removed the case to federal court based on diversity of citizenship and then moved for dismissal based on the doctrine of forum non conveniens and on the allegation that none of the defendants were subject to personal jurisdiction in Massachusetts. The district court initially denied the defendants’ motion but later granted dismissal based on the forum non conveniens argument.

Opinion of the Court

The United States Court of Appeals for the First Circuit affirmed the district court’s denial of the defendants’ motion to dismiss the plaintiff’s suit for lack of personal jurisdiction and reversed the district court’s order granting dismissal on forum non conveniens grounds. The lower court had based its decision in part on the number of Canadian witnesses who could not or would not travel to Massachusetts for the litigation. However, as the appellate court pointed out, the only two potential witnesses who were actually present when the drownings happened were the plaintiff’s two surviving children, both of whom were American citizens.

The reviewing court noted that, because the defendants had sent certain promotional material to the plaintiff and the decedent husband to entice them to travel to Canada, there was sufficient contact for personal jurisdiction, as well.

Seek Advice from an Injury Attorney in Cape Cod

When a landowner or property owner’s negligence causes a wrongful death, the victim’s family should speak to an attorney about the process of holding the responsible party liable. At the Law Offices of John C. Manoog III, we have experience in these types of cases, and we welcome your call. Phone us at 888-262-6664 or use the contact page on this website to learn more about our services. We serve clients throughout the Cape Cod area, including Hyannis and Plymouth.

For instance, claims against the government proceed differently in many situations, as compared to cases involving only private citizens or businesses. Sometimes, the claims period is shorter, or notice must be given by a certain date. This can effectively mean that an injured person must act much more quickly when suing a governmental entity.

Also, the government may be immune from certain types of lawsuits. Even where a suit is allowed, there can be limitations on the amount of money damages that can be awarded to a claimant in some cases involving the government.

Facts of the Case

In a recent appellate case, the plaintiff was the personal representative of a woman who went into cardiac arrest and died after an intruder entered her home and stabbed her; the plaintiff, too, was stabbed during the attack. Both women received medical treatment after the stabbing, but the treatment was allegedly delayed because the fire truck that responded to the call went to the wrong address. The plaintiff filed suit against the defendant city (and others), asserting that her decedent’s wrongful death and her own emotional distress were due to the defendants’ negligence, particularly the delay of the defendant city’s employees in responding to the 911 call that was made alerting authorities that an intruder had come into their home and stabbed them.

The defendant city filed a motion seeking dismissal of the plaintiff’s claims under the Massachusetts Tort Claims Act. The trial court denied the motion, and the defendant city appealed.

The Court’s Ruling

The court reversed the lower tribunal’s order denying the defendant city’s motion to dismiss the tort claims against it. On appeal, the defendant city argued that the plaintiff’s tort claims were barred by Massachusetts General Laws ch. 258, § 10(j), which describes a public employer’s liability for negligence. After reviewing the pertinent statute, the appellate court agreed with the defendant city that the tort claims against it should have been dismissed by the trial court. Applying the plain language of the statute, the court noted that the harm to the plaintiff had been caused by the “violent and tortious conduct” of a third person (namely, the perpetrator of the stabbings); in the court’s view, this was “exactly the type of claim” that should be excluded under the statute.

While it may have been theoretically possible for the plaintiff to have prevailed on a negligent medical treatment theory of liability, she did not make any such allegation against the defendant city and, thus, dismissal of her case was the appropriate remedy on appeal.

Legal Advice Available in Cape Cod

There’s never an easy time to lose a loved one, but a loss can be especially painful when it was caused by someone else’s mistake or error in judgment. If you have lost a loved one and believe that another’s negligence or carelessness was the cause of your loss, the Law Offices of John C. Manoog III may be able to help. For a free Cape Cod wrongful death case consultation, call us now at 888-262-6664. Don’t put off the call, or else you may forfeit your right to pursue compensation if a claim is not timely filed.

However, the inquiry does not end there. The expert must be prepared to give a formal opinion as to any deviations of care on the part of the patient’s treating physicians and how those deviations affected the patient. Ultimately, the expert may be called upon to defend those opinions in a court of law.

Because medical malpractice cases have several special requirements, it is important that the plaintiff be represented by experienced, highly qualified legal counsel. It is a given that the doctor, nurse, or hospital will have a team of legal professionals on his or her side of the case, and the plaintiff’s attorney must be prepared to wage a vigorous fight at trial, if necessary.

Facts of the Case

In a recent unreported appellate court case, the plaintiff was the personal representative of the estate of a woman who died while in the care of the defendant medical provider. The plaintiff filed suit against the defendant, asserting a claim for alleged medical malpractice. After a medical malpractice tribunal was convened, however, the tribunal decided that the plaintiff’s offer of proof was insufficient to present a triable claim. Thereafter, the plaintiff filed a surety bond in “purported compliance” with Massachusetts General Laws ch. 231, § 60B.

While the plaintiff’s case was pending, the Massachusetts Supreme Judicial Court decided a separate case, in which it was held that a surety bond “in the face amount of the statutory requirement” did not satisfy § 60B. The defendant filed a motion to strike the plaintiff’s filing of the surety bond and to dismiss her case. The trial court granted the defendant’s motion. The plaintiff sought relief from that judgment, as well as additional time in which to file a cash bond. The trial court denied both of the plaintiff’s requests.

Decision of the Court

The Commonwealth of Massachusetts Appeals Court affirmed the trial court’s decision in favor of the defendant. Although the plaintiff averred that the defendant put the decedent on an antidepressant medication without her informed consent and that the decedent suffered multiple falls while taking the medication, the reviewing court found that the plaintiff’s expert had not connected the defendant’s alleged deviations from the expected standard of care to the harm suffered by the decedent. While the courts generally review a plaintiff’s offer of proof favorably and can draw reasonable inferences in favor of a plaintiff, here, the court found that there was not a sufficient offering on the issue of causation to advance the plaintiff’s claim beyond speculation or conjecture. Hence, no legitimate question of liability appropriate for judicial inquiry had been raised, in the court’s view.

The appellate court also agreed with the lower court’s rulings on the issue of the bond and on the denial of the plaintiff’s motion for post-judgment relief.

Contact a Medical Malpractice Lawyer in Massachusetts

As much as they would like for us to believe otherwise, doctors and other healthcare professionals make mistakes. When they do, serious personal injury or even wrongful death can occur. If you or a family member has been hurt by a medical worker’s negligence and need to talk to an experienced Cape Cod medical malpractice attorney about your legal rights, call the Law Offices of John C. Manoog III at 888-262-6664. We accept most medical negligence cases on a contingency fee contract, which means there are no upfront legal fees required to get your case started.

While not every product mishap will result in an injury or illness significant enough to trigger litigation, some, unfortunately, will. Fortunately, the law provides some protection against unreasonably safe products, provided that the consumer does his or her part to assert a claim in a timely fashion.

As in other types of personal injury litigation, the burden of proof in product injury cases is on the injured individual, so it is important that any evidence concerning the bad product be saved and preserved as possible evidence. Contacting an experienced product liability attorney is also a critical step in the process of receiving fair compensation for medical expenses, lost earnings, pain and suffering, and other damages caused by a defective product.

Consumer Product Recalls

The federal government maintains a website that lists consumer product recalls. It is updated frequently and provides information about who to contact if you have been hurt by the subject product or if you wish to return a recalled item for repairs or a refund. Some of the items recently added to the website include bunk beds that can come apart and cause children to fall, electric blankets that can overheat and burn users, essential oil that was not packaged according to child resistance regulations, snorkels that can release excess material in a way that poses a choking hazard, doorbells that can pose a fire hazard, and chests of drawers that can tip over and entrap small children.

The “what to do” is different for each of these products, but, generally, users are directed to stop using the product and contact the manufacturer or seller via their website, email, or telephone for information concerning a refund, repair, or replacement. For example, a consumer who has purchased one of the potentially dangerous chests of drawers is advised to immediately cease using the chest because of the risk of death or injury. The company will provide pre-paid shipping labels so that consumers may return the items for a full refund or a replacement item. If you have purchased an item that has been recalled, this may be the best course of action, provided that no one in your household has yet been hurt by the bad product.

What If Someone Has Been Hurt?

If there has already been a serious personal injury or wrongful death because of a product that has been recalled, it is best to contact an attorney rather than the maker or seller of the product. There are several reasons for this. First, the product itself should be preserved rather than returned for a refund. As the case develops, it is likely that at least one (and possibly several) experts will need to inspect the product. These individuals may later testify at trial, informing the jury of the details of the product defects. Secondly, the maker of the product may ask the consumer to give a statement concerning the accident or injury. It is advisable that legal counsel be present to represent the consumer and his or her family during any such questioning. Finally, it may be necessary to file a formal complaint in court as soon as possible in order to preserve the statute of limitations. An attorney can advise the injured individual of any upcoming deadlines regarding the filing of necessary paperwork.

Contact a Personal Injury Attorney in Massachusetts About a Defective Product

The Law Offices of John C. Manoog III handles defective product cases in and around the Cape Cod area, including Hyannis and Plymouth. To schedule a free consultation, use the contact form on this website or phone us at 888-262-6664.

In order for a Cape Cod medical malpractice case to proceed past the tribunal and onward toward trial, there must be enough evidence of negligence by the defendants for the tribunal to find that there is a legitimate question of liability. Not every case “makes the cut,” so to speak. Sometimes, even though the patient was hurt or may even have died, there just isn’t enough evidence of wrongdoing by the doctor or other medical professional for the case to make it past the tribunal.

Of course, opinions can vary as to whether the threshold has been met. Sometimes, a plaintiff appeals a decision that would have terminated his or her case and finds legal recourse in the appellate process.

Facts of the Case

In a recent case, the plaintiff was the personal representative of a man who died while in the care of the defendant healthcare providers. The plaintiff filed a medical malpractice lawsuit, asserting that the defendants had failed to conform to good medical practice in several ways and that, as a proximate result, the decedent had passed away. More particularly, the plaintiff claimed that the decedent should have been diagnosed with an ischemic bowel and treated accordingly; because of the defendants’ significant delay in diagnosing the decedent’s condition, the decedent had allegedly suffered a complete bowel infarction and, ultimately, had died from what should have been a treatable medical condition.

The medical malpractice tribunal concluded that the plaintiff’s offer of proof failed to present a triable issue of medical malpractice against the defendants. Accordingly, the trial court dismissed the plaintiff’s case. He appealed, seeking further review from the intermediate court of appeals.

Decision of the Court

The Commonwealth of Massachusetts Appeals Court reversed the lower court’s order dismissing the plaintiff’s malpractice case against the defendant healthcare providers. In the reviewing court’s opinion, the plaintiff had presented sufficient evidence, if properly substantiated as the case developed going forward, to raise a legitimate question of liability appropriate for judicial inquiry under Massachusetts law. Accordingly, the appellate court vacated the trial court’s order, directed that new findings be entered, and remanded the case for further proceedings.

In so holding, the court noted that several signs and symptoms of an acute bowel process had been documented by nurses, as well as by the defendants themselves, and disagreed with the defendants’ contention that the opinion of the plaintiff’s expert witness was speculative. Rather, in the court’s opinion, the records (if substantiated) showed a “classic course of worsening ischemic bowel” that was somehow missed by the defendants.

Call for an Appointment with a Cape Cod Medical Malpractice Lawyer

Proving that a doctor, nurse, or hospital has been negligent can be a lengthy process, as well as a hard-fought legal battle. If you believe that you or a loved one has been injured due to a medical provider’s mistake, you should seek legal advice right away. To schedule a free consultation with a helpful medical malpractice attorney, call the Law Offices of John C. Manoog III at 888-262-6664. We represent those injured by acts of negligence and malpractice throughout the Cape Cod area, including Hyannis and Plymouth, and we look forward to advising you about your particular situation.

If the defendant did owe a duty of care to the plaintiff, the next step is to determine whether the duty was breached. If it was, then the issue turns to the question of causation and, then, damages. Only if the defendant owed the plaintiff a duty of care, breached that duty, and thereby proximately caused legal damages to him or her may the case be resolved in the plaintiff’s favor.

If the answer to the duty question is “no,” the case ends there – unless the trial court’s judgment is appealed, of course. Then, a higher court may take a look at the case to determine whether a mistake was made in the lower tribunal. Only if the appealing party can convince the appellate court that a reversible error was made will there be a reversal of the lower court’s decision and a reinstatement of the plaintiff’s complaint.

Facts of the Case

In a recent unreported appellate court case, the plaintiff was the mother of (and the personal representative of the estate of) a three-year-old child who drowned in a pond about half a mile from the defendants’ home. According to the plaintiff’s complaint, the child was “in the custody of” and “a guest of” the defendants at the time of her death. The plaintiff filed a wrongful death action, asserting that the defendants had acted negligently in allowing the child to roam outside of their home with their intellectually challenged son. Apparently, the child and the defendant’s son had wandered through the woods to a neighbor’s pond, and the child had attempted to swim but was unable to do so. Notably, the son had not tried to stop her from going into the water.

The defendants filed a motion to dismiss the complaint, and the trial court granted the motion. The plaintiff appealed.

The Court of Appeals’ Decision

The appellate court affirmed the trial court’s order, beginning its analysis by acknowledging that the issue of whether a duty of care existed in a certain situation was a question of law appropriate for a motion to dismiss. In order to survive a motion to dismiss based on a lack of duty, the plaintiff’s complaint had to contain factual allegations sufficient to plausibly suggest an entitlement to relief.

The court also noted that, generally, there is no legal duty to prevent the harmful consequences of a condition or situation which a defendant did not create; under Massachusetts law, social hosts are only liable in situations in which there was a recognized legal basis requiring the protection of a guest or in which there was a special relationship between the homeowner and the person who was injured or who died.

Although the plaintiff insisted that special relationship had existed here, the court of appeals rejected this contention, stating that “custody” required more than just a child’s presence in another’s home. Without more proof of the defendants’ alleged custody of the child, there was no affirmative duty on the defendants to protect the child from hazards located off of their property.

For Assistance in Filing a Cape Cod Wrongful Death Claim

If you have suffered the tragic loss of a family member due to another’s negligent or reckless conduct, you should talk to an attorney about the procedure of filing a claim seeking compensation for your loved one’s wrongful death. At the Law Offices of John C. Manoog III, we handle both personal injury and wrongful death cases in Hyannis, Plymouth, and elsewhere in Cape Cod. For a free consultation about your case, call us now at 888-262-6664. Please be mindful that there is a statute of limitations that limits the time for filing wrongful death claims, so please do not delay in speaking to legal counsel about your situation.

A Massachusetts wrongful death action may lie when a person is killed by another’s negligence. These suits are typically brought by the personal representative of the victim’s estate, acting on behalf of the beneficiaries enumerated under the state’s wrongful death statute, and, if successful, may result in the awarding of different elements of damages than would have been available in a personal injury lawsuit filed by the victim. The state’s highest court recently clarified the relationship between these two types of claims.

Facts of the Case

In a recent case, the plaintiff was the personal representative of a man who died in a scuba diving accident in 2014. The plaintiff filed a lawsuit against the defendants, the manufacturer of the decedent’s dry suit, the person who supplied the decedent’s diving equipment, and the dive leader, seeking to assert a wrongful death claim under Massachusetts General Laws ch. 229, § 2. The plaintiff settled her case against all defendants except the dive leader. Thereafter, the dive leader filed a motion for summary judgment, relying upon a release and covenant not to sue that the decedent signed prior to his death. The trial court granted the motion, and the plaintiff appealed. The Massachusetts Supreme Judicial Court transferred the case from the intermediate appellate court on its own initiative.

Decision of the Court

The court affirmed the lower tribunal’s order granting summary judgment to the defendant. The court began by explaining that it had recently released an opinion in a case with similar issues and was obligated to rule in a manner consistent with the decision in that case. In both cases, the court had been called upon to determine whether, under Massachusetts law, statutory beneficiaries have an independent right to maintain a wrongful death claim, such that a decedent is unable to waive this right prior to his or her death. In both the prior case and the instant case, the court ruled that the wrongful death claims were derivative of the decedent’s claim, not independent thereto.

Wrongful death actions are based on the alleged negligence, careless, or intentional death of a family member. Had the family member been injured by the defendant’s conduct, rather than killed by it, he or she could have maintained a personal injury lawsuit against the wrongdoer. The plaintiff argued that her right to sue for her loved one’s wrongful death was a separate right, one that the decedent was unable to waive – i.e. that he could only waive his own personal injury lawsuit, not her wrongful death claim. Because the court disagreed with the plaintiff on this point, the decedent’s signing of the waiver upon which the defendant relied in support of his summary judgment motion prohibited not only any claims that he would have had for compensation for his personal injuries (had he lived) but also the plaintiff’s wrongful death claim.

Talk to a Cape Cod Negligence Lawyer

At the Law Offices of John C. Manoog III, we handle both personal injury and wrongful death claims. If you have questions about your legal rights following an accident or the loss of a loved one, call us at 888-262-6664 and ask for an appointment with one of our experienced Cape Cod injury attorneys.

Facts of the Case

In a case recently ruled upon by the Supreme Judicial Court of Massachusetts, the plaintiff was the personal representative of her mother’s estate. Prior to her mother’s admission into the defendant nursing home, the plaintiff signed an arbitration agreement on her mother’s behalf (the plaintiff had power of attorney for the mother). After the mother passed away in 2013 due to the defendant’s alleged negligence, the plaintiff filed a wrongful death lawsuit in state court against the defendant, seeking monetary compensation for her mother’s death. The defendant insisted that the Federal Arbitration Act barred the plaintiff’s lawsuit.

The defendant filed suit in federal court. On appeal from a federal district court’s order compelling arbitration, the United States Court of Appeals for the First Circuit certified two questions to the state’s highest court pursuant to Massachusetts Supreme Judicial Court Rule 1:03. One of those questions pertained to whether the Massachusetts wrongful death statute, which was codified at Massachusetts General Laws ch. 229, § 2, provided rights to statutory beneficiaries’ derivative of, or independent from, what would have been the decedent’s own cause of action.

The Massachusetts Judicial Court’s Decision

The state court concluded that the claims of statutory beneficiaries under ch. 229, § 2, were derivative of a decedent’s own cause of action and that, hence, the arbitration agreement signed by the plaintiff on her mother’s behalf bound the beneficiaries of any wrongful death claim brought on the mother’s behalf, including the plaintiff herself. Applying this ruling to the facts at hand, the court concluded that the arbitration agreement bound the plaintiff, as the executor or administrator of the decedent’s estate, to arbitrate, rather than litigate, her wrongful death action on behalf of her mother’s statutory beneficiaries, and that, thus, the lower federal court had been correct in compelling arbitration of the plaintiff’s claim.

The court relied upon both the plain reading of the relevant statute and its previous interpretations of common-law wrongful death actions to arrive at its ruling that a wrongful death statutory beneficiary claim was derivative of the decedent’s action and that, in the instant action, the arbitration clause relied upon by the defendant was enforceable.

Talk to a Wrongful Death Lawyer

The first step is seeking fair compensation in a personal injury or wrongful death case is talking to an attorney who can explain your legal rights and help you investigate the facts giving rise to your claim. To schedule a free consultation with an experienced Massachusetts wrongful death attorney, call the Law Offices of John C. Manoog III, at 888-262-6664 and ask for an appointment. We will be glad to go over the details of your case with you and advise you of the steps necessary to move forward with your claim.

However, if a particular patient could have been saved through the exercise of reasonable medical care but, instead, dies because the treating physician’s care fell below the standard of competency for doctors who regularly perform such procedures, a Cape Cod medical malpractice lawsuit may be possible. An attorney who practices in this area will need to review the facts of your loved one’s particular case in order to determine whether there is a reasonable chance for success on the merits before going forward with the case.

Facts of the Case

In a recent case, the plaintiff was the surviving spouse and personal representative of a woman who died after undergoing surgery for treatment of a hiatal hernia in her diaphragm. The plaintiff brought a medical malpractice wrongful death lawsuit against the defendants, a doctor, a nurse, and the professional corporation for whom they worked, alleging that defendants’ treatment of the decedent fell below the standard of care for an average qualified surgeon and nurse and that this breach of care was a substantial factor in the decedent’s death. The defendants answered that the decedent died as a result of longstanding damage to her heart caused by her hiatal hernia rather than from any alleged negligence committed by them.

The case was tried to a jury, which found in favor of the plaintiff. After the trial court entered judgment upon the jury’s verdict, the defendants filed an appeal, arguing that there was insufficient evidence to support the jury’s finding that the doctor’s actions amounted to gross negligence, for which the jury awarded $2.5 million to the plaintiff.

Decision by the Court

The Massachusetts Appeals Court affirmed the lower court’s judgment. The court began its analysis of the defendants’ arguments on appeal by refusing to address their claim that the trial court judge had committed reversible error in instructing the jury on the issue of gross negligence; in the reviewing court’s opinion, the defendants had waived any argument about the instructions by telling the trial court judge that the instruction was “fine” when specifically asked about it during the trial.

The court of appeals went on to find that, contrary to the defendants’ argument, there was sufficient evidence for the jury to have concluded that the doctor’s decision to use a “tacker” in close proximity to the decedent’s pericardium incurred an obvious risk: that failure to use reasonable care could be fatal. Given the testimony of the plaintiff’s expert witness and the doctor’s admission that he did not measure the thickness of the decedent’s diaphragm crura at the time of the surgery (choosing to merely estimate it instead), the court found that the jury’s gross negligence verdict was reasonably justified.

Speak to a Cape Cod Wrongful Death Lawyer

Losing a loved one due to the negligence of a medical professional in whom a family member had placed his or her trust and confidence can be heartbreaking. It can also leave a family with many medical expenses and other financial loss associated with the loved one’s passing. If you need to talk to an established Cape Cod medical malpractice attorney about a possible medical malpractice wrongful death case, call the Law Offices of John C. Manoog III, at 888-262-6664 and schedule an appointment today.

Battery Banks Recalled

Most of us rely heavily on our cellphones these days, and a dead battery can disrupt not only our entertainment but also our ability to communicate and, when we are traveling, navigate. Portable power banks have become very popular, as we often need additional battery power to get us through a long day or a weekend trip. Unfortunately, power banks are not without risk. Recently, the United States Consumer Product Safety Commission (CPSC) issued a recall of certain 10,000 mAh power banks because the banks’ battery may overheat and cause a fire. Consumers are advised to stop using the recalled products immediately.

Interestingly, these banks are not associated with a particular brand. Rather, they may contain a company logo on the front and or back of the product. This is because they were distributed as promotional items at meetings or other events rather than sold directly to the public. If you have suffered a fire or a burn caused by one of these banks or another lithium-ion battery product, you may be able to seek compensation via a products liability claim against the manufacturer of the device.

Travel Mugs, Candles, and Gas Grills Creates Fire Hazard

Holiday mugs sold at a national retailer have also been recalled because of labeling issues. Although the mugs’ labels stated that they are microwave safe, this is not true. If the consumer places one of the metallic printed mugs into the microwave, sparks may result. This can lead to a fire. Consumers may return the mugs to the store for a full refund. The manufacturer has a toll-free number for consumers who have been injured or suffered a fire as a result of the faulty labeling on the mugs.

Certain frosted balsam jar candles are also on the CPSC recall list because the glass jar may break while the candle is lit, causing both a danger of fire and also of laceration. At least six jars have been blamed for fires so far. Certain propane gas grills have been found to have an issue with their gas regulator hoses; the hose can melt and cause a fire.

Talk to a Massachusetts Product Injury Attorney

Consumers who are hurt by dangerous or defective products have certain legal rights, including the right to seek fair compensation for medical expenses, lost wages, and other losses caused by the bad product. To talk to an experienced Cape Cod products liability lawyer, please call the Law Offices of John C. Manoog III, at 888-262-6664. Be mindful that there are statute of limitations and statutes of repose that limit the time period during which an injured consumer or deceased consumer’s family file a claim in court for money damages, so talk to an attorney as soon as possible if your family is suffering because of a products liability injury.

For a plaintiff to be successful on the merits of his or her case, he or she must provide convincing, competent, and legally admissible evidence on each of these issues. Unfortunately, simply offering testimony from witnesses may not be enough, as there are rules of evidence that determine what is, and what is not, legally admissible in court. In some situations, an appellate court may be called upon to determine whether these matters were ruled upon properly during the trial of a wrongful death lawsuit.

Facts of the Case

In a recent case, the plaintiff was the personal representative of the estate of man who died in a car accident. The plaintiff filed a wrongful death lawsuit against the defendants, seeking to recover compensation for the loss of his decedent. The case was tried to a jury. The plaintiff was dissatisfied with the jury’s verdict and filed a motion for a new trial. The trial court denied the plaintiff’s motion, and he appealed.

Decision of the Massachusetts Appeals Court

The appellate court affirmed the lower court’s judgment. On appeal, the plaintiff had two primary arguments: that the trial court judge abused her discretion when she struck a sentence from an expert witness’s testimony and that the verdict had been inconsistent. The reviewing court rejected both of these contentions and found no cause to disturb the trial court’s order denying the plaintiff’s motion for a new trial.

With respect to the expert witness’s testimony, the plaintiff complained that the trial court judge should not have struck a particular sentence from the testimony, but the appeals court noted that a judge’s discretionary decision was only grounds for a reversal if he or she made a clear error of judgment in weighing the relevant factors. Here, the plaintiff’s expert witness opined that the cause of the fatal collision at issue was the defendant driver’s failure to observe the decedent’s motorcycle approaching as he entered the roadway; the trial judge had repeatedly told counsel that testimony of this nature would not be allowed because it went to the ultimate issue of causation, an element that was to be left to the jury to determine. Thus, the judge was within her discretion in striking that part of the witness’s testimony.

As to the inconsistent verdict issue, the court of appeals first noted that a party had an obligation to object to any allegedly inconsistent answers to special questions before the jury was discharged; otherwise, any claim of an error was deemed to be waived. In the case at bar, the plaintiff did not object to the alleged inconsistency prior to the jury being discharged; hence, the court held that he had waived any argument on the issue on appeal.

Speak to a Cape Cod Wrongful Death Lawyer

Processing the trauma of a loved one’s untimely death is never easy. If you have lost a family member in an accident caused by someone else’s negligence or recklessness, you should talk to a lawyer about the possibility of filing a Massachusetts wrongful death lawsuit seeking compensation for your loved one’s death. To schedule a free consultation, contact the helpful Cape Cod personal injury attorneys at the Law Offices of John C. Manoog III, today at 888-262-6664.

However, most governmental entities have passed laws that allow themselves to be sued, at least in some circumstances. However, there are almost always limitations on such suits, including those involving a Cape Cod wrongful death claim.

Facts of the Case

In a recent unreported case, the plaintiff was a special administratrix who filed suit against the defendant city public health commission, asserting a cause of action for wrongful death and failure to supervise and/or train employees. According to allegations in the plaintiff’s complaint, the decedent was placed into an ambulance that was under the control of the defendant commission after staff members at an inn called 911 and reported that the decedent was experiencing suicidal thoughts. The defendant reportedly disregarded its usual practice of driving a suicidal patient to the hospital with a police escort; when the defendant’s employees opened the ambulance door, the decedent ran into the street, laid down, and was killed by a motor vehicle moving through traffic.

The plaintiff alleged that, by their actions, the defendant’s employees had removed the decedent from a place of relative safety (where the inn’s staff was looking out for her and securing help for her) and had taken her to a place where no one was apparently willing or able to keep her from taking her own life. Insomuch as the defendant had placed the decedent in a worse position than she was in before their invention, the plaintiff sought wrongful death damages, as well as compensation for the defendant’s failure to train/supervise its workers. The trial court dismissed the plaintiff’s complaint.

Decision of the Court

The Commonwealth of Massachusetts Appeals Court reversed the lower court’s decision insofar as it dismissed the first count of the plaintiff’s complaint but otherwise affirmed the judgment. According to the appellate court, the factual allegations in the plaintiff’s complaint plausibly suggested that she may be entitled to relief under Mass. Gen. Laws ch. 258, § 10 (j) (2) on her wrongful death claim. In the view of the appeals court, the defendant’s employees’ “intervention” may have actually placed the decedent in a worse position than she was in beforehand, thus triggering potential liability. The court of appeals further concluded that the defendant’s employees owed a duty of care to the decedent and that the plaintiff’s complaint suggested that the decedent’s suicide was a foreseeable result of the employees’ negligence. Because of this, the court reversed the trial court’s order dismissing the plaintiff’s wrongful death claim against the defendant.

Speak with an Attorney

Losing a loved one is always hard, but it is even more so when the negligence of a business, individual, or governmental entity contributed to the loss of our family member. To learn more about filing a claim for damages following the untimely passing of a spouse, parent, or child, call The Law Offices of John C. Manoog III, at 888-262-6664 and schedule a free consultation with one of our experienced Cape Cod wrongful death attorneys. We serve clients in Hyannis, Plymouth, and elsewhere in the Cape Cod region. If coming into our offices for an appointment is difficult for you, we can arrange to visit your home to discuss your case.

If the plaintiff can show that the defendant breached this duty and that, as a proximate result, he or she suffered damages, he or she may be able to recover payment for medical costs, lost wages, pain and suffering, and other associated expenses.

However, if the court does not agree that a duty of some sort existed between the parties, the plaintiff’s case will fail.

Facts of the Case

In a case recently decided by the Massachusetts Appeals Court, the original plaintiff was a woman who was shot by unknown assailants during a drive-by shooting in June 2013. At the time of the incident, the woman was reportedly sitting on a parked motor scooter on a public sidewalk adjacent to a housing development. The woman filed a negligence action against the operators of the housing development, asserting that they had caused her injuries by failing to provide adequate security or to warn her about the dangers in the area. After the original plaintiff (who was paralyzed by her injuries) died from complications associated with the event in question, the personal representative of her estate was substituted as the plaintiff.

The defendants filed a motion for summary judgment. The trial court granted the motion, holding that, as a matter of law, the defendants did not owe the duties asserted by the plaintiff under the circumstances presented in the case.

Decision of the Court

The appellate court began by pointing out that the plaintiff had to first establish that the defendants owed a duty of reasonable care, if the case was to reach it past the summary judgment phase of litigation. Noting that the question of whether a duty exists was a question of law – not a question of fact reserved for the jury – the appeals court stated that issues of duty were to be resolved by reference to existing social values, customs, and policy. While property owners have a general duty under the common law to treat all persons legally on their premises with reasonable care, the court noted that this duty does not necessarily extend to protecting those who come upon the landowner or business operator’s property from criminal actions taken by third parties. According to the court, this type of duty exists only when there is a “special relationship” between the injured person and the landowner.

Here, the original plaintiff was not a resident of the housing development operated by the defendants, so there was no relationship – much less a “special one” – between the parties. Furthermore, the court of appeals pointed out that, at no time relevant to the litigation, was the original plaintiff actually on the defendant’s property. Insomuch as the original plaintiff was a member of the public using a public way owned by a city (that was not party to the litigation), the negligence claim against the defendants failed.

Experienced Cape Cod Injury Attorney

While this particular case was unsuccessful, each personal injury accident is evaluated on its own merits. For a free case evaluation by a knowledgeable Massachusetts negligent security injury lawyer, call the Law Offices of John C. Manoog III, at 888-262-6664 today.

While there are a few, very limited exceptions to the requirements of the statute of limitations and service of process rules for such claims, almost all untimely claims are dismissed by the courts.

Thus, it is important to talk to an attorney as soon as possible if you believe that your loved one died due to another’s negligence.

Facts of the Case

In a recent case, the plaintiff was the personal representative of the estate of a man who died from a work-related injury in November 2014. The plaintiff filed a negligence and wrongful death complaint against the defendant in September 2017, asserting that the accident was caused by a machine that was owned and “superintended” by the defendant company. The plaintiff’s complaint was originally filed in state court, but the defendant removed the action to federal court (presumably based on diversity jurisdiction).

Thereafter, the defendant filed a motion to dismiss, asking the federal district court to dismiss the plaintiff’s lawsuit based on insufficient service of process. According to the defendant, the plaintiff had mailed a certified copy of her summons and complaint to the corporation, but this service was invalid because Massachusetts law required that a corporate defendant be served through its president, treasurer, clerk, resident agent, cashier, secretary, agent, other officer, or member of the corporation. The plaintiff sought to extend the time to perfect service. The district court denied the plaintiff’s motion for an extension of time and granted the defendant’s motion to dismiss due to the plaintiff’s failure to properly serve the defendant with process within 90 days as required by Massachusetts law.

Decision of the Court

The United States Court of Appeals for the First Circuit affirmed the lower court’s ruling. The court first noted that a dismissal for insufficient service of process was reviewed only for an abuse of discretion by the lower court. Massachusetts Rule of Civil Procedure 4(j) required the plaintiff to effect service of process within 90 days of filing her complaint. While failure to meet this deadline can be excused for “good cause,” the appellate court found no merit to the plaintiff’s contention that she had met this threshold by showing that the defendant had evaded service.

In so holding, the court pointed out that the defendant had not “evaded service” (as claimed by the plaintiff) because it had maintained a registered agent in the state of Massachusetts to receive service during the relevant time. The fact that the plaintiff had chosen not to utilize this agent did not change the situation. The court also pointed out that the defendant had not concealed the defect in service and, even if it had, it had no duty to notify the plaintiff of the defective service.

Contact a Massachusetts Product Injury Lawyer

As this case shows, time is of the essence when it comes to wrongful death lawsuits. If you have lost a loved one due to another’s negligent or reckless conduct, you should speak to an attorney about your case as soon as possible. At the Law Offices of John C. Manoog III, we help residents of Hyannis, Plymouth, and the surrounding area in their quest to hold negligent individuals, businesses, and governmental entitles liable for their actions. To schedule a free consultation with an experienced Cape Cod wrongful death attorney, call us at 888-262-6664.

Under Massachusetts wrongful death law, there are consequences for insurance companies that refuse to negotiate claims in good faith, as well as for those that engage in unfair or deceptive acts. However, defining what is or is not good faith in a given situation can be even more contentious that the claim itself.

Facts of the Case

In a recent case, the plaintiff was the administrator of the estate of a woman (his deceased mother) who allegedly perished as a result of the negligence of a certain nursing home. The plaintiff filed a wrongful death lawsuit against the nursing home, and the case proceeded to trial. The jury found in favor of the plaintiff, and the trial court entered judgment upon a multi-million dollar verdict in favor of the plaintiff, finding that the nursing home was liable to the plaintiff for his mother’s wrongful death and her conscious pain and suffering.

Thereafter, the plaintiff filed suit against the defendant claims management firm in the United States District Court for the District of Massachusetts, asserting that the firm had violated Massachusetts General Laws Chapter 176D in its dealings both pre-trial and post-verdict with regard to the plaintiff’s suit against the nursing home. The district court entered a take-nothing judgment, and the plaintiff appealed.

Holding of the United States Court of Appeals for the First Circuit

The circuit court affirmed the ruling of the lower tribunal. Although the plaintiff argued that the district court had committed reversible error in holding that the defendant’s actions did not constitute unfair settlement practices, the court found that plaintiff had failed to show that the district court had either misapplied the applicable law or that it had clearly erred in its finding of the facts.

In so holding, the court acknowledged that Chapter 176D requires firms that are in the business of insurance to handle claims in good faith and to respond reasonably to the exigencies of the settlement process. However, the court also noted that “every case has twists and turns” and that an “insurance carrier is not to be held to a duty of prescience.” In so holding, the court of appeals agreed with the trial court that the defendant’s pre-trial offers of settlement, while not in agreement with the plaintiff’s pre-trial opinion of the value of the case, were sufficient to inoculate it against liability under Chapter 176D.

Contact a Massachusetts Wrongful Death Attorney

If you have recently lost a loved one, the Law Offices of John C. Manoog, III, in Cape Cod, is here to help guide you through the process of filing a wrongful death claim against the individual, business, or governmental entity whose negligence resulted in your loved one’s loss of life. To schedule a free, no-obligation case evaluation, call us at 888-262-6664.

If the tribunal does not find enough evidence for the case to continue, the plaintiff does have an “out,” in that he or she can post a bond. If this is not economically feasible, the plaintiff also has the option of appealing the tribunal’s decision to the appellate court for further review.

Facts of the Case

In a recent wrongful death case considered by the Massachusetts Appeals Court, the plaintiff was the personal representative of the estate of a 29-year-old woman who died while under the care of the defendant doctors and others. The decedent presented herself at the hospital when she was 38 1/2 weeks pregnant, complaining that she was in labor. She was in good health and had given birth two two children previously. She died at the hospital some 25 hours later.

According to the plaintiff’s complaint, the defendants were negligent in that they failed to timely recognize that the decedent’s condition required a cesarean section, they failed to insure that the decedent’s abdomen was left open (following an emergency bedside c-section performed after she “coded”) to monitor bleeding, and they waited too long to perform an emergency hysterectomy and performed the procedure without the proper medical tools.

The medical malpractice tribunal concluded that the plaintiff had failed to raise a legitimate question of liability as to two particular doctors who were involved in the decedent’s care. After the plaintiff failed to post a bond, the superior court dismissed her claims as to these two doctors.

The Court’s Opinion on Appeal

The appellate court vacated the lower tribunal’s order dismissing the plaintiff’s complaint against the defendant doctors, directing that the plaintiff could proceed with his claims. According to the court, the offer of proof submitted by the plaintiff, if properly substantiated, was enough to raise a legitimate question of liability appropriate for judicial inquiry.

In so holding, the court acknowledged that, while the same bases of liability was alleged against several different defendants, this was not surprising or concerning because all of the defendants were involved in the decedent’s care (albeit at different times and in different combinations) and the events at issue took place over a short span of time. Thus, unlike the justice who wrote a dissent in the case, the majority opined that the plaintiff’s case against both of the doctors involved in the appeal should move forward (the dissent agreed as to one doctor but would have ruled that the plaintiff had presented insufficient evidence as to the other.)

Wondering Whether You Might Have a Malpractice Case?

If you or a loved one has been hurt by the negligence of a doctor, nurse, hospital, or other healthcare provider, you should know that you have only a limited amount of time to file a claim seeking monetary compensation. At the Law Offices of John C. Manoog, III, in Cape Cod and Hyannis, we offer a free, no-obligation case evaluation for those who suspect they have been the victim of medical malpractice. To schedule an appointment, call us at 888-262-6664. You make the call, and we’ll do the rest!

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