Boston Personal Injury Lawyer - General Personal Injury

Pool Drain Lawsuit Filed Because of Drowning

Jenny Albano — Tue, 29 Jan 2008 16:31:29 GMT

Parents of a boy who drowned filed a lawsuit Monday, January 28 against the town of Greenwich, Shoreline Pools, and others. The 6 year-old drowned when his arm became caught in a powerful swimming pool drain. The lawsuit, by Brian and Karen Cohn, alleges that the pool safety violates safety requirements that were instated after many similar tragedies.

The lawsuit, which seeks damages of more than $15,000, alleges Shoreline had a history of violating building code requirements and accuses the town of failing to conduct a proper inspection before issuing a permit.

Zachary, the 6 year-old boy, became trapped after his arm became stuck in the intake valve on the wall at the deep end of the pool. When the water enters the intake valve there is a great amount of suction. When he became trapped on July 26, 2007, the father and another adult jumped in to try and save him, but unfortunately the suction from the intake valve was to strong.

The boy's parents could not find a mechanism to turn off the suction pump, so Karen Cohn ran and shut off power to the house, including the pool's drain pump. Brian Cohn was then able to free his son and perform CPR, but it was too late.

According to the lawsuit, there have been more than 150 reported drain entrapments since 1985 and over 48 deaths. There have also been other serious injuries such as disembowelment. In 2004, Connecticut made new safety requirements for pool circulation systems.

The lawsuit states that the swimming pool the boy drowned in did not live up to the minimum safety standards and that there are seven code violations that could cause entrapment.

For more information on this subject, please refer to our section on Wrongful Death.

Originally posted at InjuryBoard by Jenny Albano

Charitable Immunity is Unjust

Ken Margolin — Wed, 19 Sep 2007 07:00:00 GMT

Protecting charitable organizations from liability for the negligence of the organization or its employees, may sound noble, but is in fact, unfair. The immunity doesn't really accomplish its goals, and insures that employees of an organization involved in a personal injury lawsuit, will be sued instead of the organization. Here's the way it works in Massachusetts. By statute, M.G.L. c. 231, Â§85K, the liability of non-profit, tax-exempt corporations, for personal injury caused by their negligence, is limited to $20,000. The doctrine never made much sense, since even organizations providing noble services, should be responsible for their actions when they harm others. Now that many "charitable" organizations are economic behemoths, such as major universities and hospitals, with CEOs earning seven figure incomes, the doctrine serves only to harm legitimate plaintiffs and to provide a windfall for the insurance industry. Virtually all viable non-profit organizations carry liability insurance. There is no logical reason why that insurance can't cover the organization as well as its officials and employees, thus protecting the charitable corporation and victims of its corporate negligence.

The charitable immunity doctrine applies only to the organization, not its officials and employees, This guarantees that in a serious personal injury case, the employees will be sued, and the culpable institution will either not be sued or dropped from the case before trial. Juries don't learn of the tort cap, and the risk is too large that they will render a sympathetic defendants' verdict on behalf of the employees and nail the organization, never realizing that only $20,000 can be collected. The doctrine is at its most unjust when there is institutional negligence - for example, inadequate safety policies and procedures - but no readily identifiable, negligent employee. A risk is created that a jury hearing such a case, will let the employee off the hook, all the while wondering why the errant corporation was not made a defendant. Charitable corporations, no less than for-profit corporations, owe a duty of reasonable conduct to the public, and ought to procure sufficient insurance in case their negligence causes an innocent person serious harm. The Massachusetts legislature needs to buck the pressure from the insurance lobby, and abolish the antiquated and unfair doctrine of charitable immunity.

Originally posted at InjuryBoard by Ken Margolin

Tainted Beef Sold in Shaw's Supermarkets Recalled

Ken Margolin — Thu, 06 Sep 2007 13:15:00 GMT

Ground beef patties sold under the Shaw's supermarket label, were recalled yesterday. According to Fairbank Farms, the company that sells the beef to Shaws, packages with the tainted beef could have been purchased in New England between 7 a.m. - 11 a.m., on Wednesday, September 5, 2007. The 85% lean beef was sold in 1.33 pound packages with the establishment number "Est. 492. The beef was tainted with an ecoli bacteria that can cause illness ranging from stomach cramps to the rare death from kidney failure. Fairbanks Farms reports that while most of the tainted beef was located before it left the warehouse, some packages were distributed to Shaws supermarkets in each of the New England states. According to the federal Center for Disease Control and Prevention, the type of ecoli found in the recalled beef, kills more than 60 Americans each year.

Originally posted at InjuryBoard by Ken Margolin

Settling Cases

Ken Margolin — Thu, 06 Sep 2007 12:15:00 GMT

Fifteen years ago, the idea of formal mediation of a serious personal injury case in Massachusetts, was cutting edge stuff. Settlement of most cases took place the old-fashioned way, via phone calls or meetings between counsel and at times, insurance adjusters. Today, by way of contrast, a look at the advertisements in the Massachusetts Lawyers Weekly, shows more than 30 ads for alternative dispute resolution. Many of the ads are by ADR companies that maintain substantial lists of professional arbitrators and mediators. Many a lawyer, especially those who have practiced for many years, and a significant number of retired judges, lend their experience to the alternative dispute resolution movement. In addition to commercial ADR firms and individuals, are numerous court-operated ADR services.

Some old timers - fewer and fewer in number - long for the good old days when "real" trial lawyers would prefer the jury verdict to settlement. The fact is that juries are inherently unpredictable. Even in cases of wrongful death or catastrophic personal injury, some compromise in a sure settlement is usually preferable to the vagaries of a jury trial. Still, the plaintiff's lawyer must be prepared to take the case to the jury if the insurance company misjudges and offers too little to settle. And as is true for trials, obtaining a good settlement at mediation requires thorough preparation and skilled presentation, so the message is clear that the case is trial-ready should settlement efforts fail.

Originally posted at InjuryBoard by Ken Margolin

Virginia Tech Faulted in Student Deaths

Ken Margolin — Thu, 30 Aug 2007 10:30:00 GMT

An eight-person panel, appointed by Virginia Tech. President, Timothy M. Kaine, issued its report yesterday, on the April 16th multiple murder at the school. The panel said that lives could have been saved if the school administration had issued a timely warning that two students had been murdered. The two were killed approximately two hours before the killer proceeded to another building and murdered 31 more people. The report did conclude that more than the initial two students would likely have been killed, even if the school had acted promptly. The panel also faulted the school for not sufficiently responding to the mental problems of the murderer - student, Seung-Hui Cho. It's depressing to think that an unhinged mass murderer afoot on a college campus, has to be "reasonably foreseeable" in the language of tort law. Given Columbine, the college murder in Montreal, and other mass murders on school properties, that may be the reality in the early 21st century.

Originally posted at InjuryBoard by Ken Margolin

The Power of Exhibits

Ken Margolin — Mon, 20 Aug 2007 11:15:00 GMT

I wonder if anyone has ever calculated the number of words per hour spoken during the average jury trial. The right words, used the right way, can evoke the most powerful of images, associations, and emotions. Words can also drone on and become little more than background noise to the listener. The lawyer trying a case involving catastrophic personal injury, has a challenge. He may need to educate the jury on a scientific topic, for example accident reconstruction. He may need to make sure they understand the scope of the plaintiff's economic loss.

Accomplishing the necessary jury education and persuasion in a complex personal injury trial, is not possible with words alone. On the other hand, too much use of exhibits could turn a trial into a circus, detracting from the seriousness of the matter at hand. The plaintiff's lawyer needs to balance words with exhibits, simple exhibits with more elaborate displays. Basic blowups of pages of medical records can be very useful, as can enlarged color photographs. In a medical malpractice case in which a timeline is important, the attorney can hire companies that will create a visually engaging horizontal chronology, based on medical records entries. In a construction accident case, an attorney may have a detailed model built, replicating the scene where his client was hurt. Tangible things can work better in some cases, than photographs.

Sometimes, nothing but the actual item in question, or an exact duplicate, will do. As I write this piece, a colleague of mine is trying a case on behalf of a restaurant worker severely burned when a heavy cauldron tipped over too far, emptying its load of scalding water on the man. At considerable expense and effort, my colleague purchased a duplicate of the cauldron in question and had it delivered, bolted to planks, to the 5th floor courtroom. I don't know yet if he'll win, but if he does, you can bet that the kettle will have played a major role. Computer animations of events can be useful, provided the judge is convinced that they are sufficiently accurate to be allowed into evidence, and the jury believes they are fair representations of events. The use of exhibits is vital and their variety is as limitless as an attorney's imagination.

Originally posted at InjuryBoard by Ken Margolin

The Expert Witness Industry

Ken Margolin — Wed, 15 Aug 2007 14:45:00 GMT

Many serious personal injury cases, and pretty much all products liability and medical malpractice actions, require expert witnesses. The experts testify on topics including the mechanism of injury, industry standards or medical standard of care, the plaintiff's medical condition, economic loss, and others. Local experts may not want to testify against a professional or company in their own state, for fear of being ostracized.

The problem of the reluctant expert is particularly acute in the medical malpractice arena. In response to this problem, a sizeable industry has grown, providing expert witnesses for attorneys on every conceivable topic. The pages of lawyer professional publications are filled with ads for companies promising to procure top flight experts; the internet is all the more overflowing with these companies. While expert search and procurement companies are invaluable resources for plaintiff's lawyers, they do not replace the attorneys need to be very careful when selecting an expert.

The experts who list with the placement companies range from superbly qualified and good testifiers, to hacks, long-retired experts out of date on their subject matter, and experts well-qualified on paper who could not speak plainly and simply to a jury if their life depended on it. It's always best for the plaintiff's lawyer if he can find the right expert through personal knowledge or recommendation. If he has to go to an expert placement company, he needs to be dogged in finding an expert who knows his stuff and who will perform well at trial.

Originally posted at InjuryBoard by Ken Margolin

Home Depot's Falling Merchandise

Ken Margolin — Wed, 01 Aug 2007 15:30:00 GMT

Obtaining data on the number of people injured at big box stores such as Home Depot, is difficult. The information is guarded like state secrets. Data generated in litigation, however, has revealed that the big box giant, Home Depot, has had an ongoing problem with falling merchandise killing and maiming customers. One lawsuit revealed that in the late 1990s and early 2000s, more than 2,200 people per year were being injured at Home Depot stores. In 2004, an Idaho jury awarded $570,000 to the family of a 3-year old girl killed by falling countertops. A North Carolina jury awarded $500,000 in 2005 to the family of a 12 year old boy who suffered head injuries from a falling steel door at a Home Depot. Another falling door in a Home Depot, killed a 6 year old boy named Ivan SanMiguel. These and many other catastrophes will continue until Home Depot spends enough of its profits on customer safety. The steps needed to prevent merchandise from falling in big box stores, are simple and well known. The knowledge is useless without the will and funds to implement necessary safety measures.

Originally posted at InjuryBoard by Ken Margolin

Protecting Consumers from Binding Arbitration Clauses

Ken Margolin — Thu, 26 Jul 2007 18:20:00 GMT

Big corporations love binding arbitration clauses. They are hidden in many contracts, requiring the individual to give up his or her right to a jury trial in the case of a dispute with the company. Some clauses attempt to block class actions. When large corporations are safe from class actions, they can cheat large numbers of people in small increments, knowing that paying off the few individuals who take the time to pursue justice, will be an acceptable cost of doing business.

Two Democratic congressmen, Senator Russ Feingold (D-WI) and Representative Hank Johnson (D-GA), propose to protect Americans from many binding arbitration clauses. They have introduced the Arbitration Fairness Act of 2007. The Act would declare pre-dispute binding arbitration clauses in the context of employment, consumer, franchise, and civil rights disputes, to be invalid and unenforceable. People Over Profits, sponsored by the American Association for Justice, backs the bill. The People Over Profits web site explains the bill, and makes it easy to let your senators and representatives know that you want the Arbitration Fairness Act of 2007, enacted into law.

Originally posted at InjuryBoard by Ken Margolin

Can I Sue if I Receive Workers Compensation?

Ken Margolin — Fri, 20 Jul 2007 15:30:00 GMT

I have been asked this question many times over the years by clients who have received serious personal injuries at work. Workers compensation pays the injured employee regardless of whether the employer or anyone else was negligent, and even if the employee's own negligence contributed to his injuries. Worker compensation laws are essential, but they are something of a devil's bargain.

The tradeoff for certainty of payment is that the compensation is grossly inadequate in cases of death or disabling injury, and the employer cannot be sued. The personal injury attorney contacted by a person who was badly injured on the job, must look for a viable "third party defendant." The third party defendant is a person or entity, other than the employer or a fellow employee, whose negligence contributed to the injury. For example, a negligent subcontractor in a construction accident case, might be a third party defendant. If the workplace injury was caused by a defective product, the product manufacturer could be a third party defendant. Sometimes, maintenance or security on a work site, is performed by an entity other than the employer. In the appropriate case, they might be third party defendants.

In any tort case in which workers compensation insurance has been paid, the insurer has a lien on the potential recovery, from which it can recoup the money it paid to the injured employee. In Massachusetts, the lien is automatically reduced by a third, the notion being that the plaintiff's attorney's efforts benefited the comp. insurer, which should be responsible for their portions of the attorneys fees. Worker compensation insurers are often willing to reduce their liens further, in order to facilitate a settlement, enabling both the comp. insurer and the injured employee to benefit.

For more information on this subject, please refer to our section on Workplace Injuries and Discrimination.

Originally posted at InjuryBoard by Ken Margolin