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Crowe & Mulvey, LLP, receives Tier 1 ranking from U.S. News – Best Lawyers® “Best Law Firms”

Our entire team is excited to announce that Crowe & Mulvey, LLP, has received a Tier 1 ranking for the Boston metro area in the Medical Malpractice Law – Plaintiffs and Personal Injury Litigation – Plaintiffs practice areas. Receiving a U.S. News – Best Lawyers® “Best Law Firms” ranking is based on rigorous selection criteria that combines a formal submission process, peer review, client evaluations, and lawyer evaluations. Additionally, in order to be considered for a “Best Law Firms” ranking, a firm must have at least one lawyer who is listed in Best Lawyers for the same practice area and metropolitan area.


Art teacher dies from misplaced manhole cover on roadway

On Friday, February 12, a misplaced manhole cover weighing over 200 pounds flew up and struck the windshield of a Honda sport utility vehicle that was traveling in the left lane of Interstate 93 south near the exit for the Thomas P. O’Neill Tunnel in Boston. Tragically, the accident resulted in the death of the SUV driver as she was making her daily morning commute to work.

The victim was later identified by the Milton Public School District as Glover Elementary School art teacher Caitlin Clavette.

Highway administrator at the Massachusetts Department Of Transportation, Thomas Tinlin, said that state transportation workers were asked to inspect around 500 manhole covers and utility panels throughout the Boston area “out of an abundance of caution” following the incident.

The thoughts of everyone at Crowe & Mulvey, LLP, go out to the loved ones of the victim of this tragic accident.


Tips from the Masters: Direct Examination

The Massachusetts Academy of Trial Lawyers recently asked Liz Mulvey to contribute to its Tips from The Masters series.  Liz penned the following suggestions, which were published in a supplement to Massachusetts Lawyers Weekly on February 8, 2016:

Let’s face it. Direct examinations aren’t glamorous.  Perry Mason never won a case on direct examination.  Television news generally doesn’t showcase direct examinations.  And jurors don’t look up and lean forward in their seats when a lawyer stands up to do a direct exam.

And as a result, many lawyers make the mistake of viewing direct examinations as boring and unimportant. After all, they know exactly what (they hope) the witness will say, the exam can be scripted and rehearsed before trial ad nauseam, and the sense of confrontation, surprise and drama that accompanies a cross-examination just isn’t there.  And too often, the lawyer’s attitude that direct examination is a just a formality to be endured, a box to be checked, is both obvious and contagious to the jury.

We’re all taught that trials are stories, and lawyers are story tellers. But truly, the witnesses who testify on direct exam are the principal story tellers—or at least they should be. Lawyers do enough talking, and jurors do enough listening to lawyers.  There is no reason to pass up an opportunity to allow a witness to participate in telling the story. 

Good direct examination involves three steps: 1) figure out what the jurors want to know; 2) listen to the witness; and 3) more witness, less lawyer.

In a good direct examination, the lawyer stands in the jurors’ shoes, asking the questions that the jurors want answered. Sometimes those questions elicit the pertinent facts, but just as often, the answers to direct questions may show the jurors that something isn’t important, or needn’t be considered.  Often, the lawyer may know that an issue is irrelevant, or that there is a reason for a gap in the evidence—but the jurors won’t know unless some witness tells them.  Showing the jury why something doesn’t matter, or why a piece of evidence isn’t available, can eliminate unnecessary confusion and unanswered questions that could sidetrack the deliberaitons.  Once I’ve had the witness tell the story, I usually address issues raised by the defense, to allow the witness to give the answers to questions that are probably on the jurors’ minds.  Allowing the witness to answer a direct question without interruption is usually much more effective than hoping the witness can explain under cross examination.

It’s easy to assume that a witness on direct examination has given the same answer he gave in a deposition or conference room, and that the jury understands the answer. But that’s not necessarily true.  Unless the lawyer is listening carefully to the answers, and watching the jury, it’s impossible to know if the testimony is clear, correct and comprehensible.  This means looking up from the legal pad and really thinking about the answers coming from the witness, asking questions to clarify an answer where necessary, and being quick to follow up an unexpected response.

Finally, it’s important to remember that the witness should be the star on direct exams. The lawyer’s questions should be short and easy to understand.  There’s nothing wrong and everything right about questions like “What happened next,” “Describe what you saw,” “Who was there?” or my all-time favorite, “Why?”  The lawyer’s role is not to testify, or even to suggest answers, but simply to prompt the witness to tell the story.  The witness’s words may not be perfect, but they’re likely to be much more persuasive than the lawyer’s.

More than once, I’ve had a judge look quizzically at me as I quietly allow a defense lawyer to lead a witness through a “direct” exam full of leading questions where the lawyer does much more testifying than the witness. The truth is I would much prefer to have the jurors listening to a lawyer drone on than risk that they might be persuaded by an interesting, articulate and credible witness.
 


A New Direction for Recreational Use Statute?

A recent Appeals Court decision suggests that the court may be taking a closer look at the Massachusetts Recreational Use State, G.L. c.21, section 17C.  The statute, which bars ordinary negligence claims against landowners who allow the public to use their property for recreational purposes “without imposing a charge or fee,” has in recent years been expanded far beyond what the legislature originally intended.

The court in Amaral v Seekonk Grand Prix Corp. rejected a claim by the operator of a go-kart facility that a mother who was injured while watching her sons ride could not recover after being struck by an errant go-kart.  The facility had raised the Recreational Use Statute as a defense, claiming that, since it permitted the mother to watch her sons without paying for the privilege, it was not liable for negligence.

At first blush, this defense seems patently absurd: how could a money-making operation possibly avoid liability to patrons injured through its negligence?  How could a statute which was intended to encourage landowners to allow the public to use open space for hiking, horseback riding and similar activities be used to protect a business? Yet, the go-kart operator was able to point to a line of decisions in which spectators at an event for which admission was not charged could not recover for negligence.  And the Superior Court judge who heard the motion for summary judgment agreed.

Fortunately, common sense prevailed in the Appeals Court.  The court reversed the grant of summary judgment, noting that the plaintiff had purchased admission tickets for her sons to ride the go-karts.  The court noted that “Grand Prix could fully anticipate that a parent accompanying minor children and paying a fee on their behalf would qualify as a paying customer under the statute.”  Because the plaintiff had paid a fee “for her particular use of the land,” her claim was not barred.

The decision still doesn’t go as far as many victims would hope–and there was a much easier way for the court to get there.  The statute does not require that the individual user pay a fee, but merely that the landowner allow recreational use by the public “without imposing a charge or fee.”  The plain language of the statute would seem to exempt commercial money-making endeavors from its scope.


Fairness for Third-Party Claimants

Worker’s compensation insurers cannot enforce their lien against third-party settlement proceeds that are allocated to a claimant’s pain and suffering damages, the Supreme Judicial Court recently ruled.  In DeCarlo v. Suffolk Construction Co., Inc., the Court held that the compensation carrier could recover amounts paid for medical bills and lost wages only from settlement proceeds attributable to those categories of damages.

The law in Massachusetts and most other states bars employees from suing their employers for injuries suffered in the workplace, instead limiting them to worker’s compensation benefits.  Those benefits, while usually paid immediately and for the duration of the disability, cover medical bills and part of the wage loss, but provide only limited compensation for loss of function and nothing at all for pain and suffering.  The employee may still bring negligence claims against other persons or entities, and may recover full tort damages.  If the employee recovers additional compensation, the worker’s compensation carrier has a right to be reimbursed for what it has paid.

For years, insurers have successfully insisted that their lien may be satisfied from the employee’s entire recovery, regardless of how it is allocated among the various elements of tort damages.  This process sometimes leaves the employee with little to no compensation for general damages such as pain and suffering, because the lien consumes a large portion of the settlement or judgment.

The plaintiff in DeCarlo argued that the insurer could recover its payments only from amounts allocated to medical bills and lost wages, and that lien could not reach that portion of the settlement attributable to his pain and suffering.  Relying on the language of the third-party recovery statute, G.L. c.152 s. 15, the Court agreed.  The Court noted that the statute specifically referred to an injury “for which compensation is payable…”  Since no compensation is payable for pain and suffering, the insurer could not enforce its lien against damages for that injury.  The result is  consistent with an earlier ruling of the Appeals Court in Hultin v. Francis Harvey & Sons, Inc., which recognized that the insurer could not enforce its lien against a spouse’s recovery for loss of consortium.

The Court noted that employees would not be able to “stack the deck” against the insurer by allocating all or even the lion’s share of a settlement to pain and suffering damages.  The allocation of a settlement is subject to approval by a superior court judge or the Department of Industrial Accidents, at a hearing at which the insurer has a right to be heard.  Plaintiffs and their lawyers should be prepared to justify the allocation of settlement proceeds to different categories.


New rules require Massachusetts surgeons log time in OR

Under the new rule approved by the Massachusetts Board of Registration in Medicine on Thursday, January 7, surgeons would have to record the exact time they enter and leave each operating room. This new rule would is designed to better keep track of surgeons’ presence in ORs in order to mitigate problems that arise from the practice of double booking surgeries.

This ruling comes in response to a series of claims made by The Boston Globe Spotlight Team, who wrote an extensive report about surgeons who perform multiple operations in the same time slots in Massachusetts. The issue raises a significant debate; in fact, one doctor at Massachusetts General Hospital was dismissed in August 2015 for voicing his opinion against the scheduling technique.

Our attorneys at Crowe & Mulvey, LLP have represented clients who have been harmed by negligent medical practitioners and professionals. We seek to hold members of the medical community responsible for behavior that leads to the injury or suffering of their patients so as to ensure that justice is served. To learn more, call us today at (617) 426-4488.


ATV collision results in four injured

Four individuals, two young boys and two men, were hurt during a New Year’s Eve accident involving two all-terrain vehicles at around 9:20 p.m. on Thursday, December 31 in the area of 500 Ashburnham Hill Road in Fitchburg, Massachusetts.

According to Deputy Fire Chief Thomas Dateo, the victims were only identified as a 32-year-old man, a 21-year-old man, a seven-year-old boy, and a six-year-old boy. He added that each ATV was occupied by a man and a boy at the time of the collision.

Emergency medical responders said three of the four individuals who were hurt in the incident sustained “severe multiple-trauma injuries.” The 32-year-old man was airlifted to UMass Memorial Medical Center – University Campus in Worcester where his leg was amputated. The 21-year-old suffered from a head injury and was transported to Leominster Hospital.

The six-year-old boy was suffering from respiratory problems when responders arrived at the scene and was airlifted to UMass. The seven-year-old boy sustained a compound fracture in his left leg and was also taken to UMass via ambulance.


Bridgewater, Raynham vehicular accidents result in multiple injuries

Two serious car crashes which happened less than half an hour apart resulted in injuries to three individuals and the delay of public traffic along Route 24 in Bridgewater and along Interstate 495 in Raynham, both in Massachusetts, on Monday, December 7.

A two-vehicle collision that occurred at around 2:40 p.m. on Route 24 South near Route 104 in Bridgewater critically injured two individuals and also caused the sides of Route 24 to close temporarily. The roads were opened to traffic about 40 minutes later. The injured victims were airlifted to Rhode Island Hospital and Beth Israel Deaconess Center in Boston, according to Massachusetts State Police trooper Paul Sullivan.

The Bridgewater Fire Department and the Massachusetts State Police responded to the scene of the accident and secured the area.

Meanwhile, a second accident occurred at around 3:10 p.m. when a pickup truck flipped over and came to rest on its roof on I-495 South near Exit 8 in Raynham, causing a 21-year-old New Bedford resident to suffer minor injuries.


Study finds ‘rich doctors’ are subject of fewer malpractice lawsuits

A recent study conducted among medical practitioners has shown that doctors and physicians who choose to spend more money on higher quality equipment and medical facilities are less likely to become the target of medical malpractice lawsuits.

The study’s authors analyzed data and interviewed physicians in order to draw its conclusions. One doctor, Anupam Jena, from a hospital in Massachusetts, discussed the concept of defensive medicine. She explained that physicians who are willing to invest in nicer equipment deal with fewer technical mistakes. Her explanation is apparently corroborated by findings of the study, which stated that doctors who do not invest extra money in equipment face a 50% higher risk of malpractice lawsuit.

At Crowe & Mulvey, LLP, our Massachusetts legal team represents clients who have been the victim of medical practitioners whose actions can be considered negligent. Often, these patients are faced with additional medical issues as a result of the mistakes made by their doctors. If you have suffered at the hands of a medical professional who failed to uphold an acceptable standard of care, contact our attorneys by calling (617) 426-4488 today.


Liz Mulvey Ranked #1 Lawyer in Massachusetts by Super Lawyers

In a recent issue of Boston Magazine, attorney Elizabeth Mulvey of Crowe & Mulvey, LLP, was ranked the #1 lawyer in the state of Massachusetts by Super Lawyers. She was also recognized on a list of the Top 100 lawyers in the state, and again on a list of the Top 50 women attorneys in MA. Liz Mulvey is listed under the category of Personal Injury Medical Malpractice: Plaintiff by the publication.

The entire team at Crowe & Mulvey, LLP, is thrilled to congratulate Liz on this tremendous accomplishment, as Super Lawyers uses a rigid selection process that combines independent research, peer review, and professional achievement to determine its annual rankings of attorneys in the state.