1 Autumn 2007 Vol. 1, No. 3 Navigating the waters of maritime claims Annual Dinner in pictures, pages 6-7 Nothing frivolous about our experience By Paul F. Leavis When I was 13 years old, my mother fell down the cellar steps in our home on Christmas Day. The fall shattered her right arm, resulting in 13 separate fractures. I have a distinct memory of standing at the head of the stairs holding my new football, while the Woburn police and emergency personnel prepared my PRESIDENT S mother for MESSAGE transport to the hospital. Her arm was repaired with screws, plates and a rod that ran from her elbow to her wrist. The doctors told her she would never regain full use of her limb. With five kids and a stubborn Irish temperament, my mother hung laundry and scrubbed floors as her physical therapy. Over time, and defying predictions, my mother pretty much regained full use of her arm. Years later, surgeons removed the rod because it was backing out and threatening to protrude through the skin above my mother s elbow. The rod was fashioned with a small hook at one end that acted as a handle in facilitating its removal. Ever practical, my mom kept the stainless steel rod and used it in ensuing years as a knitting hook. Because of my age, much of my mother s experience arising from this accident more or less washed over my conscious existence. Only at a subconscious level did what I see apparently take hold. When I was 17, my father underwent reconstructive surgery to repair a chronically damaged shoulder that resulted in recurrent dislocations. Prior to the operation, my dad worked two jobs in order to meet the needs of his family. The surgery proved to be a disaster. He Continued on page 17 By Thomas M. Bond Atrial lawyer attempting to litigate a maritime claim without doing the preliminary and necessary research may be in for some rough sailing, and should keep certain pointers in mind. First of all, don t miss the boat altogether: statutes of limitation are often far shorter than they are for land based claims, and may be as short as one year. Recognize that there are different and unique causes of action in admiralty. One significant and commonly overlooked difference is that an injured party usually can sue his employer. This is true even where he receives workers compensation benefits from the employer. When setting sail, don t get lost at sea. Choice-of-forum clauses are routinely enforced in admiralty. You may not be able to file suit in By Howard L. Nations The great trial lawyer Daniel Webster said: Justice is the greatest concern of man on earth. Lawyers play many vital roles on the world s stage, but none more important than preserving, protecting and perpetuating the rights of citizens, both individual and business. Since lawyers play such a vital role in our democracy, why has lawyer-bashing increased exponentially in recent years, and how should we respond to it? One of the many enigmas to arise out of the corporate-dominated decade of the 80s is the advent of lawyer bashing. The adversaries of our proud and noble profession continue to misquote the law, distort case results and unjustly attack judges and juries in a mass media onslaught designed to silence the victim s voice the trial lawyers of America. Ironically, the rallying cry of the lawyer bashers has become the nearby waters of Massachusetts. After you find the appropriate forum and timely file your suit, be careful how you chart your course you may plead yourself out of your right to trial by jury. The elements of the claims are different, too. The standard of care may be higher. Causation is not proximate cause. The quantum of evidence necessary to prove a maritime claim may be far lighter than for a land-based claim. To confuse things even further, the burden of proof sometimes shifts to the defendant on an essential element of the claim. If successful, damages are atypical. Loss of consortium, loss of society and punitive damages are oftentimes not recoverable. Prejudgment interest may or may not be recoverable in admiralty. This article reveals some of the more unusual features of maritime law claims. This is not a restatement of the Law of Admiralty, but hopefully a user-friendly guide for the land-based trial lawyer confronted with a maritime case. Statute of limitation differences Cruise ships: Virtually every cruise ship ticket requires a sixmonth notice of claim and a oneyear limitation period for suit. These periods are allowed by statute. 46 U.S.C (b). Failure to give the six-month notice does not bar recovery under certain circumstances, including if the vessel knew of the injury and was not prejudiced by the failure. 46 U.S.C (c). The one-year period for filing suit is allowed whenever the U.S. is the exit port or a port of destination. If a U.S. port is not involved, the limitations period is likely two years pursuant to the Athens Convention. Henson v. Seabourn Cruise Line, Ltd., Inc., 410 F.Supp.2d 1246 (S.D.Fla. 2005). Public vessels and government vessels: The doctrine of sovereign immunity applies in admiralty law Continued on page 18 Let s kill all the lawyers : Shakespeare s tribute to trial lawyers William Shakespeare s quote from Henry VI: The first thing we do, let s kill all the lawyers. Those who use this phrase pejoratively against lawyers are as miserably misguided about their Shakespeare as they are about the judicial system which they disdain so freely. Even a cursory reading of the context in which the lawyer-killing statement is made in King Henry VI reveals that Shakespeare was paying great and deserved homage to our venerable profession as Continued on page 20 A Supplement to Massachusetts Lawyers Weekly
2 2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN 2007 IN MEMORIAM John R. Fox: the essence of honor By Alan J. Klevan The surest way to live with honor in the world is to be in reality what we would appear to be; all human virtues increase and strengthen themselves by the practice and experience of them. paraphrased from Socrates When I was first invited to write about John R. Fox, I was both humbled and apprehensive, feeling tremendously unfit for the task of composing a brief tribute to a man who I felt was clearly larger than life. He touched so many people in so many different ways how could I capture that essence in a finite piece of work? I felt that, to do justice to John, I had to contact his family and friends to capture some of their fondest thoughts about him and, after doing so, came up with a word that describes the very essence of John honor. John was a fair and decent man, a man of integrity. This came very quickly to me on Nov. 20, 1991, when I walked into the Law Offices of Joel H. Schwartz for the first time as a young associate. I was greeted warmly and then sent to an office to review some files. Soon after, and not knowing an answer to a question, I marched into a partner s office and asked this simple question: Where s the Personal Injury Protection form? While that seemed innocuous enough, it Alan J. Klevan is a longtime MATA member and former governor. He practices with his wife at Klevan & Klevan in Wellesley, focusing on subjects including personal injury, workers compensation and entertainment law. He received his undergraduate degree from Brandeis University and his JD from Suffolk University School of Law. was a workers compensation file, and there are no personal injury protection benefits in workers compensation. While one of the partners rolled his eyes, John looked at me and said, Alan, there are no such things as stupid questions, only stupid answers. From that moment on, John became my mentor, my advisor and my friend. For the 10 years I worked at Joel s office, John never wavered from his support of me, and he was my rock. After the birth of my second child, I started contacting firms closer to my home in Newton, and I felt comfortable enough discussing the situation with John, something unheard of in this day and age. I knew that, being a father of five children, John would provide me the honest guidance that a young father needed to hear, not what I wanted to hear. In 2001, after my third child was born, I left Joel s office to work closer to home. John took the initiative to arrange a party for me, and gave me a watch I still wear today to remind me of the support he provided. Honor. John was an unwavering advocate for the consumers of Massachusetts. His successes have been well-documented in publications throughout the state. John took on some of the largest corporations and organizations in Massachusetts, but never tried the cases in the court of public perception. He was one of the first attorneys in Boston to take on the Archdiocese, but never spoke with the press, opting to safeguard his clients privacy. Regardless of the case, John was always confident, despite juror bias and political shifts, that the judge or jury would award fair and proper compensation for his client. Anyone who crossed paths with John knew he was a trial lawyer and damn proud of it. I asked John to become involved in the Massachusetts Academy of Trial Attorneys in He was hooked after the first meeting of the automobile committee. John so desperately wanted to advance the cause of the consumer he was elected to the Board of Governors and served faithfully through 2006, when he was first diagnosed with his illness. John used his MATAconnection to build an extensive network of friends and referral sources. Even after John left the board, he was still a regular contributor to the organization he cared for so deeply, and he attended events as his health dictated. While John was an aggressive attorney, he was always honest and never judgmental. As Reflections on friends, contributors By J. Michael Conley Just about 24 years ago, I experienced my first day of law school in a classroom with current MATAmembers Michael K. Gillis, Robert W. Casby, Joe Burke, William E. Enright Jr. and the late John R. Fox. Even then, as a beginning first year law student, John was earnest, ingenuous, audacious and enthusiastic, but entirely willing to laugh at himself. At my request, John s close friend, Alan Klevan, has J. Michael Conley is a member of the MATA Board of Governors, chair of the MATAAmicus Committee and MATAJournal editor-in-chief. He is a partner at Kenney & Conley in Braintree. shared with us his memories of John. *** Howard L. Nations is a giant of the plaintiff s trial bar and a longtime leader of ATLA/AAJ. Nations has allowed us to republish for our membership and other readers his article entitled The first thing we do, let s kill all the lawyers: Shakespeare s tribute to trial lawyers. Clearly, this is not the first or only article to point out that William Shakespeare was not really advocating extermination of lawyers, but Nations skillfully and eloquently reminds us to quit feeling sorry for ourselves, recognize the overriding importance of what we do, and take pride in our important role in preserving and advancing our free society. I am extremely proud to be a member of EDITOR S NOTE JOHN R. FOX this great profession and I urge each of you to reflect on the mantle of responsibility which we bear, the challenges we face and the level of complete commitment to individual rights which has been the hallmark of our profession for centuries, says Nation. Indeed, we must conduct ourselves so that for centuries to come the refrain of the tyrants and demagogues must remain: the first thing we do, let s kill all the lawyers. Thank you, Mr. Shakespeare, for the compliment. We shall strive to deserve it. Nations has been called the Grandaddy of Technology for litigators and is very generous in sharing his expertise. His firm s website, contains a treasure trove of links and resources helpful to plaintiffs trial lawyers. Joel, John s partner for 20 years, said, John had unsurpassed integrity and always stood up for what he thought was the right thing to do. John s last case tried was one in which he represented an individual injured on the premises of an entity that had no assets. Knowing he could only get a judgment, John tried the case in Newburyport Superior Court and lost. However, he found an issue of error, and the court granted his motion for a new trial. But due to his illness, John was not able to continue the prosecution of the case. Honor. John certainly lived up to the principle that good lawyers are, by their nature, good people. While zealously advocating for his clients the only way John knew, he always granted opposing counsel every courtesy requested, which was how he expected to be treated as well. If counsel would resist to John s requests, he would use his extraordinary command of the English language and power of persuasion to convince opposing counsel that he was correct, and the conversation would continue on to other things, such as their kids, or hobbies. To that end, John was charitable to a fault. Continued on page 8 PRESIDENT Paul F. Leavis, Esq. PRESIDENT-ELECT Mary Jane McKenna, Esq. TREASURER Chris A. Milne, Esq. SECRETARY Kimberly E. Winter, Esq. IMMEDIATE PAST PRESIDENT Marsha V. Kazarosian, Esq. EDITOR-IN-CHIEF J. Michael Conley, Esq. PUBLISHER/EDITOR Jennifer L. Comer PRINTING AND PRODUCTION Massachusetts Lawyers Weekly
3 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3 6th Annual Diamond Ball expected to be a gem The Massachusetts Academy of Trial Attorneys will hold its Sixth Annual Diamond Ball on Wednesday, Nov. 28, 2007, at the Boston Harbor Hotel. The event, which has become MATA s most well-attended and popular evening, ushers in the 2007 holiday season with a night of dancing and socializing with friends and colleagues. The raffle of a two-carat diamond, generously donated once again by John Bair of FORGE Consulting in Buffalo, N.Y., adds to the excitement of the evening s festivities. The Diamond Ball also hosts a live auction with veteran auctioneer and MATA past-president Warren F. Fitzgerald, who will present a variety of wonderful items for attendees to bid on that evening. Past Diamond Ball auctions have included such items as A Year of Fine Dining, which includes 12 gift certificates to various restaurants; a walk-on part in a television series; and a complete design and print package for a law firm brochure that also includes layout, photography, design, copy and printing. The Diamond Ball also brings the opportunity for donations to the annual MATA Toys for Tots program, which the academy has supported for many years. The Diamond Ball provides the perfect venue for MATA members, friends and families to enjoy an evening of great cuisine, dancing, a live auction and a wonderful diamond raffle, together in the beautiful ballroom of the Boston Harbor Hotel. Each year, Diamond Ball attendees and sponsors increase, and we hope to continue this growth pattern on Nov. 28. Please call our office at (781) for information on sponsorships, donate auction items and reserve tickets to the 2007 Diamond Ball. We look forward to seeing you on Nov. 28 at the Boston Harbor Hotel to celebrate the start of this year s holiday season. The Massachusetts Academy of TrialAttorneys cordially invites you to celebrate the holiday season at our Sixth Annual Diamond Ball November 28, :00 pm Wharf Room Boston Harbor Hotel PLEASE JOIN YOUR FRIENDS AND COLLEAGUES FOR AN EVENING OF HOLIDAY CELEBRATION Enjoy dinner, dancing and mingling Help underprivileged children, bring an unwrapped, new toy for our annual Toys For Tots collection Bid on trips, art, TV walk-ons and more at the live auction Win a two carat diamond! Host your office party The Diamond Ball Festivities will include Dinner & Dancing Complimentary Bar Live Auction Two Carat Diamond Drawing Toys for Tots Collection Please RSVP by November 14 Black Tie Optional MATA s Sixth Annual Diamond Ball $ per person $ per couple $400 for groups of five $ I would like to purchase a diamond pouch for a chance to win a 2 CARAT DIAMOND! Academy seeks Journal input If you would like to write an article for the MATA Journal, or would like to see an article on a specific topic or issue, call Mike Conley at (781) or Name: Address: Phone: Payment information: AMEX M/C VISA CHECK Credit Card # Sec. Code Exp. Date Signature PLEASE Return to: MATA, 8 New England Executive Park, Suite 160, Burlington, MA (781) , (781) (FAX)
4 4 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN 2007 By design, Statute of Repose a cause for concern, vigilance By Stanley D. Helinski The Massachusetts Statute of Repose related to improvements of non-public real property is set forth in G.L.c. 260, 2B. Section 2B, as amended, states that: Actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property... shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the performance or furnishing of such design, planning, construction or general administration. Relative to public projects, the statute provides: Actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property of a public agency, as defined in said section 39A shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall actions be commenced more than six years after the earlier of the dates of: (1) official acceptance of the project by the public agency; (2) the opening of the real property to public use; (3) the acceptance by the contractor of a final estimate prepared by the public agency pursuant to chapter thirty, section thirty-nine G; (4) or substantial completion of the work and the taking possession for occupancy by the awarding authority. The statute serves as a complete bar to recovery in actions to which it applies, and does not permit late filing based on factors often considered in the tolling of statutes of limitations. Because the statute provides for a start date on the earlier of substantial completion and taking of possession of the project or the opening of the improvement to use, a plaintiff s tort remedy may be foreclosed even before he or she is injured. of privity of contract in tort actions seeking recovery against architects and builders. Before McDonough, a professional engaged in the design and building of an improvement to real property would generally not be liable to third parties injured by his or her work. Reasoning that [t]here is no reason to treat a house manufacturer any different than a manufacturer of chattels, the McDonough court established that a builder or contractor may be liable for injuries or damage caused by his negligence to persons whom he has no contractual relation and even though his work is completed and accepted by the owner before the injuries or damage occurred. 365 Mass. at 511. Following the McDonough decision, the Legislature reacted to concerns that the consequence of the decision would result in the exposure of an architect, designer, engineer or builder to third party suits long after relinquishing control of a project by tendering a job to its owner. The exposure could continue well into one s retirement. As such, G.L.c. 260, 2B was enacted. In discussing the purpose of the statute, the SJC observed that it arose from concern over permitting unlimited liability to design professionals: [d]esign creativity might be stifled if architects labored under the fear that every untried configuration might have unsuspected flaws that could lead to liability decades later. Klein v. Catalano, 386 Mass. 701, 708 (1982). The constitutionality of 2B was affirmed in Klein v. Catalano, 386 Mass. 701 (1982), and subsequently in federal court in Cournoyer v. Massachusetts Bay Transit Authority, 744 F.2d 208 (1984). Each decision found that the Statute of Repose bore a rational relationship to a legitimate public purpose. Specific claims as actions in tort Section 2B specifically refers to tort actions, and courts of the commonwealth have Implied warranties, imposed by law and sounding in tort, are considered tort claims and thus fall within the ambit of Section 2B. Klein, 386 Mass at 702. A plaintiff may not sidestep the legislative intent of limiting tort claims by styling his or her cause of action as a warranty claim where the claim involves allegations that are tort in nature, such as claims involving a breach of duty. Rosario v. M.D. Knowlton Company, 54 Mass.App.Ct. 796, (2002); Sullivan v. Iantosca, 409 Mass. 796, 798 (1991). However, where an action involves an express warranty, a designer or builder may not be afforded the protection of 2B. Actions based on specific contractual obligations and express warranties between parties will not be disturbed by the enactment of Section 2B. Klein, 386 Mass. at 720; Anthony s Pier Four, Inc. v. Crandall Dry Dock Engineers, Inc., 396 Mass. 818, 820 (1986). The applicable statute of limitations for Chapter 93Aclaims typically exceeds that of the regular tort claims by one year allowing a four year statute of limitation. This enables a party to bring an action after the expiration of the statute of limitations for the underlying, related tort claim. Fine v. Huygens, DiMella, Shaffer & Associates, 57 Mass.App.Ct. 397 (2003). The same is not true for cases involving the Statute of Repose under 2B. In such cases, a Chapter 93Aclaim involving an underlying tort claim is considered a tort claim in itself and still must be brought within the six-year period. Fine, 57 Mass.App.Ct. at 404. Who does 2B protect? The Appeals Court has concluded that 2B s application is determined by the nature of the acts rather than specific actors. Sonin v. Massachusetts Turnpike Authority, 61 Mass.App.Ct. 287, 289 (2004). Thus, the label applied to a particular profession of a defendant is not controlling of suitability under sion and observation of construction by architects and contractors involves individual expertise not susceptible of the quality control standards of the factory we think that the Legislature, by enacting Section 2B, meant to protect providers of individual expertise in the business of designing, planning, construction, and administering improvements to real estate ). The nature of the engineering and design work is particularly relevant to this determination. Anthony s Pier Four, Inc., 396 Mass. 818, 823 n. 8 (1986). Architects and designers deal in inexact sciences incapable of precise measurement and are encouraged to experiment. Klein v. Catalano, 386 Mass. 705, (1982). Thus, the particularized, almost artistic aspects of the work are protected. Section 2B also refers to an aspect of work referred to as general administration. General administration has been recognized as the fine tuning aspects of building and design. These are the acts that occur in the fixing up process and are separated from those acts that may involve maintenance after the last punch list is satisfied, the professionals paid and discharged. Coca-Cola Bottling Co. of Cape Cod v. Weston & Sampson Engineers, Inc., 45 Mass.App.Ct. 120 (1998). This distinction is important, as a viable cause of action may turn on whether an actor s conduct is considered maintenance which is not protected or general administration which is protected. Naturally, these are fact-driven inquiries. In Rosario v. M.D. Knowlton Co., 54 Mass.App.Ct. 796 (2002), a material lift manufacturer was protected from liability because the Appeals Court felt that the customization of the lift was such that particularized services were offered to afford protection as a designer. The manufacturer was found to have evaluat[ed] the plant to determine whether it was possible to install a material lift, t[ook] measurements of the dimensions Purpose of the plant, ma[de] calculations consistently applied the Statute of Repose to 2B. The protection of 2B is provided to actions where the primary focus is grounded those who provide particularized service in necessary for the design of the lift, suppl[ied] Section 2B was enacted by the Legislature following the Supreme Judicial Court s decision in McDonough v. Whalen, 365 Mass. 506 (1982), essentially abolishing the requirement Stanley D. Helinski is a trial attorney specializing in civil and criminal cases. His past experience includes chemical exposure, pharmaceutical and defective consumer products tort litigation, as well as criminal defense trial and criminal and civil appeals. He has written numerous publications, co-authored a chapter on the subject of mass tort litigation and spoken numerous times on matters relating to trial practice. Helinski is presently in private practice in Boston. in tort. This means all torts, and not just negligence claims. The fact that a defendant caused the deficiency by gross negligence, wanton conduct, or even knowing and intentional wrongdoing makes no difference as 2B is written. Section 2B disclaims any interest either in equities in favor of the person harmed or in the degree of culpability of the wrongdoer. Sullivan v. Iantosca, 409 Mass. 796, 798 (1991). In contract actions, a distinction has been drawn between liability imposed by law and liability imposed by promises made by the parties. Salamon v. Terra, 394 Mass. 857 (1985). This distinguishes contracts implied in law from express contractual undertakings. the design, building or generalized administration of an improvement to real property. For example, an engineer providing standardized manufactured items may not be afforded protection while a supplier or material man providing custom designed components to an improvement may be. To appreciate the utility of 2B, it is necessary to accept the rationale behind protecting architects, engineers, designers and builders from prolonged liability. 2B applies to acts that involve a particularized service, where standardized quality control enjoyed by suppliers and manufactures does not exist. Dighton v. Federal Pacific, 399 Mass. 687, (1987) ( Because inspection, supervi- the necessary specifications to [the facility]..., inspect[ed] the facility, ma[de] certain repair/renovation recommendations for the area where the lift was to be placed to accommodate and ensure its proper installation, inspect[ed] the progress of the renovations on 8-10 occasions before delivery, and enter[ed] into a subcontract agreement with MJB Installations to install the lift at [plant]. 54 Mass.App.Ct. at 802. An owner of property, to the extent that it participated in the design of the improvement, will not be excluded from protection simply due to holding owner status. Sonin v. Massachusetts Turnpike Authority, 61 Continued on page 19
5 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 5 Afarian brief offers comments on Statute of Repose Stanley D. Helinski s summary of General Laws c B, Section 2B, correctly points out that the Appeals Court s decision in Sonin v. Massachusetts Turnpike Auth. 61 Mass. App. Ct. 287 (2004) applies the Statute of Repose in favor of entities with continuing ownership, possession and control of premises containing dangerous defects traceable to design and construction activities in which the owner participated. The Massachusetts Academy of Trial Attorneys has opposed this interpretation and expressed its opposition in an amicus curiae brief filed with the Supreme Judicial Court earlier this year in Afarian v. Massachusetts Electric Co., 449 Mass In its resulting decision, the SJC did not reach the Statute of Repose issue. Consequently, this remains a significant concern which the court should eventually address. The court, however, will never deal with the issue unless plaintiffs lawyers preserve and advance the argument. The following excerpt from MATA s Affarian amicus brief (revised for context) is provided to encourage and facilitate the preservation and argument of the issue in appropriate cases: G.L.c. 260, 2B does not extinguish the liability of owners or others with continuing control over an improvement. In Sonin v. Massachusetts Turnpike Auth., 61 Mass. App. Ct. 287 (2004), the Appeals Court held that the protection of 2B applies to anyone who provides individualized expertise and engages in design and construction activities relating to an improvement to real property, regardless of whether that person and continues to own, control and maintain the property and can remedy any defective condition that causes injury to others. In Sonin, the plaintiff brought a personal injury claim arising from the alleged negligent design (omission of a breakdown lane) of a portion of the Massachusetts Turnpike. The Massachusetts Turnpike Authority defended in part on the basis that the defendant itself had designed the allegedly defective stretch of highway. Affirming the trial court s dismissal of the negligent design claim, the Appeals Court ruled: By its clear and express terms, 2B limits the period for bringing any claim arising from negligent design without regard to whether the owner or another party has committed the alleged negligence. Put another way, an owner that participates in the design of improvements to real property is as entitled to the protection of 2B as any other actor involved in such design or construction but only with respect to a claim for negligence in the design. The Sonin court did not address or distinguish the duty of an owner or possessor of property to correct or repair premises that are defective and dangerous by virtue of negligent design. The court did, however, agree that a claim against the owner based on failure to warn was properly submitted to the jury. The Sonin decision was incorrect. Nothing in the statutory language, the legislative purpose or sound public policy supports application of the statute to immunize the owner of an improvement or the possessor of improved land so as to eviscerate such persons safety responsibility for conditions under their present and continuing control. The Sonin decision gives rise to the indefensible result that a possessor of property containing a dangerous or defective improvement over six years old would be relieved of liability by virtue of having actively contributed to the creation of the dangerous condition, while a similarly situated possessor who played no role in creating the danger would be exposed to liability. The legislature could not have intended such an illogical construction of the statute. The Sonin decision is contrary to the statute s legislative history and purpose, as well as the SJC s holding in Klein v. Catalano, 386 Mass. 701, (1982). In Klein, the SJC identified the purpose of the Statute of Repose, G.L.c. 260, 2B, as intended to bar all claims against contractors, architects and others involved in the construction of improvements to real property six years after the these actors relinquish control of the improvement to the owner of the real property on which the improvement was constructed. This protection was deemed necessary by the Legislature because, after the acceptance by the owner, the architect or contractor ordinarily has neither control of the improvement nor the right to enter or inspect the improvement and, therefore, is helpless to remedy any dangerous condition (Id.). The Klein court observed, [s]imply put, after six years, the statute completely eliminates a cause of action against certain persons in the construction industry. In particular, the court referred to a time limit on the liability of architects and contractors, stating that the statute was enacted in response to case law abolishing the rule that once an architect or builder had completed his work and it had been accepted by the owner, absent privity with the owner, there was no liability as a matter of law (Id. at 702, 708). Referring to the case law that the statute was meant to counter and legislative history, the court in Klein explained that recent decisions: greatly increased the liability of architects, contractors, and others involved in the construction industry.... An injury could occur many years after the architect or contractor had completed his work. Since an ordinary statute of limitations did not begin to run until either the date of the injury or its discovery, those involved in construction were subject to possible liability throughout their professional lives and into retirement. At the urging of those involved in the construction industry, the Legislature placed an absolute outer limit on the duration of this liability. (Id. at [emphasis added].) When considering an equal protection challenge to 2B, the court agree[d] with the plaintiff that [ 2B] has the effect of granting immunity from suit only to architects, engineers, contractors, and others involved in the design, planning, construction, or general administration of improvements to real property and of denying that protection to suppliers, owners, tenants, and others in possession or control. 1 In ruling that the Legislature could have rationally concluded that it was proper to place different time limits on the liability of builders from those placed on persons in possession or control as owner, tenant, or otherwise, the court quoted with approval the following discussion from a Louisiana case: [T]here is a valid distinction between persons performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property and a person in possession or control, as owner, lessor, tenant or otherwise, of such improvement at the time of the incident giving rise to the cause of action. After the date of registry in the mortgage office of acceptance of the work by the owner, there exists the possibility of neglect, abuse, poor maintenance, mishandling, improper modification, or unskilled repair of an improvement to immovable property by the owner, lessor or tenant. It is difficult for the architect or contractor to guard against such occurrences because, after the acceptance by the owner, the Continued on page 22 Northeast Consulting Engineers, Inc. John W. Mroszczyk PhD, PE, CSP President MIT PhD 20 Years Experience All Types of Accident Reconstruction including industrial, vehicular, construction Automobile Theft Forensic Engineering and Failure Analysis Mechanical and Structural Design Analysis Product Liability Machine Design and Machinery Guarding Premise Design Defects including slip and fall, stairs, openings Safety Engineering and Code Compliance Forensic Animation For clear and precise explanation and presentation of accidents and hazards 74 Holten Street Danvers, MA Phone (978) (978) Fax (978)
6 6 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN MATA Annual Dinner
7 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS MATA Annual Dinner 2007 Annual Dinner sponsors: The Massachusetts Academy of Trial Attorneys would like to thank the following sponsors of the Annual Dinner: Alliance Print Group Baker & Abraham Brent Coon & Associates Catuogno Court Reporting Citizens Bank Cooley, Manion, Jones Crowe & Mulvey Experienced Resolution Resources Forge Consulting Karon & Dalimonte Kazarosian Law Offices Kreindler & Kreindler Law Office of Morgan J. Gray Leavis & Rest Lexis Nexis Lubin & Meyer Massachusetts Bar Association Meehan, Boyle, Black & Bogdanow Milne Law Office Robson Forensic Sheff Law Offices Sugarman and Sugarman Swartz, McKenna & Lynch West Group
8 8 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN 2007 Keys to successful online marketing The number of people going online to get information, comparison-shop and make important decisions about their lives continues to increase nearly 8 in 10 Americans (9 in 10 college-educated Americans) now are online, according to a Harris Interactive poll; and they re not there to surf: 90 percent of online consumers use the Internet for research, while 80 percent make purchasing decisions so it s easy to conclude that the Internet is where prospects are, and finding them and converting them to clients is critical to your long-term growth. But that conclusion leaves key questions unanswered, such as: In the fast-growing free-for-all of the Internet, how do you connect with your potential clients (and more of them)? While good looks are great, do eyecatching websites add real value? What strategies convert site visits into actual cases? The fact is that successful online legal marketers focus on three related areas: building visibility via search engines and directories; using distinctive site design to set the firm apart; and delivering persuasive content that engages prospects and deepens client relationships. Visibility More than two-thirds of all law firms now have a web presence. If you ve been online to survey the competition, you know the importance of visibility of taking steps to ensure The preceding is a white paper reprinted with permission from Thomson FindLaw, a division of Thomson West. FindLaw provides law firms with websites and other online marketing services that generate new business with qualified prospects and build stronger, more profitable relationships with existing clients. Attorneys can also be prominently listed on findlaw.com. To schedule an appointment with a FindLaw online marketing consultant, call (866) 44FINDLAW or Log on to for more information about the importance of law firm marketing. Continued from page 2 In a recent tribute to John, Thomas R. Murphy of Quincy mentioned that he often opposed John in legal matters, and, over the years, the two grew quite close. It therefore came as no surprise to Tom that, per Tom s requests for assistance in judging his hometown s mock trial team, that John gave his time, freely, and generously, not to John s hometown team, but to Tom s team. (See Thomas R. Murphy s letter to the editor, John Fox: a genuinely righteous dude who will be sorely missed, Massachusetts Lawyers Weekly, Aug. 20.) John s family threw a surprise 50th birthday party for him on Jan. 5 of this year. That you stand out. You should be aware that most prospects will locate you via legal directories or search engines; the ranking of law firms on those search tools does not occur by chance; and you can improve your ranking and drive more prospects qualified prospects to your site. One key is ensuring that your site is updated and uses a high percentage of keywords and key phrases unique to your practice areas, geographic locations and client base. That s critical because on an ongoing basis, search engines use software spiders to examine websites, then use that information to respond to search queries. While the formulas are complex, sites with fresh, keywordrich content typically rank highest. To use keywords and key phrases effectively: Cast a wide net: Non-attorneys may not always search by legal terms of art. Include lawyer and attorney on your site. Reference car crash and auto wreck in addition to automobile accident. By using the language of your future clients, you ll rank higher in their search results; Cover your geographic area: For example, Milwaukee, Wisconsin, eastern Wisconsin, and Midwest ; and Don t overdo it: Stilted text containing too many keywords may attract more hits from search engines, but those visitors won t stay long. In addition to client-facing keywords, search engines also rank sites using the behind-thescenes information in title tags, alt tags and other hidden elements of HTMLcode. Inbound links links from other websites that direct users to your site also factor in. The more quality links you have from relevant, law-related sites, the higher you re likely to rank. Attracting the attention of search tools is important not only due to the sheer number of competing websites, but also the behavior of website visitors. Research indicates that more than 60 percent of Internet users click on a search result in the first page of results. was the last time I saw John, and he looked fantastic. The prognoses were good, and John looked great as ever; vibrant, smiling and clearly overtaken with joy at this momentous event. Yet, not once did John discuss himself. We talked baseball and arranged dates for our rotisserie baseball league drafts. He discussed with Joel and Steven Schwartz his return to the office, feeling that he was letting the firm down. And in a speech that evening, John never once mentioned his condition, only focusing on his family and friends. And he said something that will always resonate with me: If I could wrap all my friends and family in a red ribbon, they would be the best present I Asearch-engine friendly website will help you reach those quick-to-click prospects. To gain even more exposure, however, law firms should also consider paid advertising opportunities like banner ads and top listings, as well as legal directories (sites where individuals and businesses can research legal issues and browse firm profiles). Linking your site to a directory connects you with highly motivated prospects who are actively looking for representation. Frequently, listings that appear on the most-visited legal directories, such as findlaw.com, rank higher in search-engine results than a law firm s own site. Design The most important choice a law firm makes in designing its website is what it leaves out. On the Internet, being all things to all people is a great way to reach no one. Effective design zeroes in on the attributes that set you apart and communicates that unique identity through words, images and the organization of your site. Your window of opportunity is small. On the Internet you have just seconds to make a positive impression with site visitors before they click away. Every photo and headline even your color scheme counts. Select images that reflect your practice areas or the city you serve. Reinforce those messages through headlines, section heads and other prominent blocks of copy. And think in terms of your prospect s expectations. While an aggressive tone and bold colors can work for a criminal-law firm, visitors to a family-law site may be swayed by a softer approach. Above all, make it easy. Is your contact information displayed prominently on every page? If you have special expertise Spanish-language capabilities, for example do you say so? Can a visitor easily navigate your site without clicking the back button? Clear, straightforward site design also promotes visibility. Complicated multimedia bells-and-whistles, for example, often drive could ever have. John passed away on Aug. 1, Ironically, that was the day after the baseball trade deadline. I am convinced that John, an ardent and knowledgeable baseball fan, waited the extra day to see who the Red Sox picked up at the trade deadline in order to help them get to the World Series. Perhaps he was busy making his moves for his two rotisserie baseball teams, of which I can say I am proud to be behind him in one of the leagues and only slightly ahead of him in the other as I write this. He was surrounded by his wonderful family his wife Karen, sons Johnny and Michael, and daughters Shannon, Rachel and search-engine rankings down, besides making for a dubious customer experience. Content Effective site design encourages prospects to stay for a closer look. But content converts them to clients and turns new business into long-term relationships. Newsletters and articles can position you as a subject-matter expert, while case results and FAQs are a chance to demystify your firm and speak directly to prospects. Have a key niche? Consider creating a unique landing page for it. Content is also an important client-development tool an opportunity to keep them coming back for more with client-only areas; collaborative extranets where you can share documents; and newsletters and other informal channels that start conversations and generate leads. These interactive tools simultaneously showcase your tech-savvy and help you build connections to clients. Another benefit of fresh, relevant content is visibility search engines reward sites that have it and assign a low rank to old, outdated material. Conclusion The bottom line? Today s web-savvy consumer clicks past outdated articles and clichéd marketing-speak. Online success depends on engaging people with content that s relevant, timely and in dynamic formats that encourage repeat visits. The best information is wasted, of course, if the right prospects aren t finding your site at the right time. Conversely, attracting thousands of visitors to your site, but then providing little of value when they arrive, also won t add to your bottom line. Firms that address all three aspects of successful online marketing visibility, design and content have a great opportunity to win business and maximize the return on their Internet investment. John R. Fox: the essence of honor Kelly. Also there were his mother and father, Jim and Ruth, brothers Jim, Joe, Jerry, Tom, Jason, Justin and Jeff, sister Julianne, and their families. Over 2,500 people attended his wake, with nearly as many attending his funeral the following Monday. It was unmistakable that John s unconditional love for his family and friends was mutual. I wear a red Livestrong bracelet around my wrist to honor the man who taught me how to live my life and practice my profession honorably. May we all promote John s vision by remembering that our practice is a noble one, and may we all practice with the same honor and dignity that John brought to our profession with such admirable integrity.
9 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 9 Legislative update: measures that support MATA s mission By Timothy C. Kelleher III The mission of the Massachusetts Academy of Trial Attorneys is to preserve and improve the American civil justice system; to protect the health and safety of families; to improve the quality of legal representation; to educate the public about consumer issues; to uphold the honor and dignity of the legal profession; and to uphold and defend the Constitution of the United States and the Commonwealth of Massachusetts. MATA s Legislative Committee continues to do its part by monitoring and addressing the many bills which are filed that would impact the areas MATAseeks to preserve and improve. MATAsupports bills which improve the protection provided to families. Many bills, however, have been filed which would have negative repercussions on working families. MATAroutinely provides important information to legislators to help them understand the unfair result which could occur if some of these bills became law. Quite often these bills are filed with good intentions, but it is part of our obligation to point out why many bills, as drafted, would Timothy C. Kelleher III is a partner at Cooley Manion Jones LLP in Boston. He is a trial lawyer whose practice is focused on civil litigation including general liability, product liability, construction site litigation, medical malpractice and commercial litigation. He is chair of MATA s Legislative Committee. not solve a problem, but rather harm those who need our help the most. MATAmembers have also been responding to proposed legislation that would impact our justice system by providing legislators with information which allows them to understand completely the negative impact some of these bills would have on our judicial system in the commonwealth. We have also been providing written materials and testifying in support of bills that would improve our judicial system. MATAwould like to thank the members who have been researching legislative issues, drafting position statements, testifying before various legislative committees and meeting with legislators and their staff to address concerns related to the impact of legislation on our judicial system, consumers, injured victims and their families. MATA s Legislative Committee will continue to monitor and address legislation. The committee welcomes the ongoing participation of its members and invites other members to become involved. The following list summarizes some of the proposed bills which impact issues pertinent to MATA: 2007 MATA general legislation House Bill 1649 An Act Granting Discretion to the Superior Court to Allocate Certain Settlement Proceeds Allocates proceeds from a personal injury judgment or settlement between the plaintiff and the insurance company which provided benefits for treatment of said injury; authorizes the court to reduce amounts of insurers liens if said settlement or judgment amount does not sufficiently compensate the plaintiff for damages incurred. House Bill 1625 An Act to Prohibit the Use of Certain Liability Waivers as Against Public Policy Defines any agreement, waiver, disclaimer, exclusion or limitation of liability in an employment contract or application releasing any third party from liability for injuries or death resulting during the scope of employment as void against public policy; prohibits the mandatory signing of said documents by employees or employment applicants. House Bill 1628 An Act Relative to the Examination of Jurors Establishes a pilot program governing the voir dire procedures for selection of jurors in civil and criminal trials; authorizes the direct oral examination of the potential jury members by a party to the trial or the attorney therefore; authorizes the court to impose reasonable limitations on questions presented. House Bill 1651 An Act Providing for the Equitable Apportionment of Certain Liens Requires the hospital, health maintenance organization or medical or dental services corporation, and the plaintiff in a personal injury action to divide costs and expenses incurred in enforcing the liability of the tortfeasor, including attorneys fees and court costs. House Bill 913 An Act Relative to Liquor Legal Liability Insurance Prohibits the issuance or renewal of a license for the sale of alcohol to be drunk on the premises unless the applicant provides proof of coverage under a liquor legal liability policy of at least $250,000 for a single incident and $500,000 for multiple incidents. House Bill 1635 An Act Relative to Attorney s Lien for Fees Grants attorneys that enter into written contingent fee agreements with clients a lien for reasonable fees and expenses upon the proceeds derived from said agreement. Senate Bill 942 An Act to Clarify the Charitable Purposes of Certain Organizations Prohibits use of the fact that a corporation, trust or association is a charity as a defense to any tort action; limits liability in said cases to $20,000 if said tort was committed in the course of charitable activity and said corporation, trust or association earns more than 50 percent of its income from gifts or donations; limits liability for organizations established primarily for religious purposes to $20, MATA auto legislation House Bill 1621 An Act Relative to Personal Injury Litigation Regulates adjudication of settlements for lawsuits against insurers relative to failure to pay personal injury benefits; authorizes courts to assess costs, reasonable attorneys fees, and Continued on page HA Get expert advice from: For the first time, the leading trial lawyers in Massachusetts reveal their secrets for handling trials in today s changed environment. When to take a deposition by videoconference. What limits you can place on medical exams and how to avoid having the jury see an IME report. How to identify and handle a Daubert/Lanigan issue. The real reason insurers ask for mediation and how to get the most out of it. How to use juror questioning of witnesses to your advantage. Michael Bogdanow Leo V. Boyle Michael E. Mone Elizabeth N. Mulvey Camille F. Sarrouf Neil Sugarman Anthony Tarricone Plus commentary by eight Superior Court Judges. Only $49.95 (or $39.95 for MATA members), plus $5.95 shipping/handling The four most common expert witness mistakes. How to talk to insurance adjustors. When to depose an expert for the other side. How to take advantage of juror notebooks, interim commentary and pre-instructions. The best way to use high-low agreements, Mary Carter agreements, and structured settlements. How to use Daubert/Lanigan to attack a defense expert. And much, much more! ORDER YOURS TODAY! VISIT or CALL LAWYERS WEEKLY BOOKS
10 10 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN 2007 A thank you to our monthly contributors The Massachusetts Academy of Trial Attorneys monthly contributors have made a tremendous commitment to MATAand the American Association for Justice on behalf of their clients and their profession. Their dedication to the preservation of the jury system has made it possible for MATA and AAJ to continue to protect consumers against tort reform movements that threaten the rights of citizens every day. Approximately 80 percent of each contribution goes directly to MATAto fund items such as lobbyists, and a portion goes to Lawyers for Action PAC (political action committee), which provides support to state political legislators and candidates. The remaining 20 percent of the monthly contribution goes to AAJ s PAC to support federal legislators and candidates. These contributions make it possible for both MATAand AAJ to continue to increase their political efforts both locally and nationally. It allows for both organizations to educate the public and politicians and to directly impact consumers through the Legislature. We are grateful for the support our monthly contributors provide and their dedication to the rights of consumers and victims. SPRINGFIELD One Monarch Place 1414 Main Street Springfield, MA (413) WORCESTER 446 Main Street Worcester, MA (508) BOSTON 30 Rowes Wharf Boston Harbor Hotel Boston, MA (617) PROVIDENCE 72 S. Main Street Providence, RI (401) LAWRENCE 225 Essex Street Lawrence, MA (978) PITTSFIELD (413) HARTFORD (860) Call toll free (888) Fax toll free (877) $1,000 Card Leo V. Boyle Philip J. Crowe Jr. Patrick T. Jones Andrew C. Meyer Jr. Michael E. Mone Neil Sugarman $500 Card Douglas K. Sheff $300 Card David R. Bikofsky Michael B. Bogdanow John J. Carroll Jr. Robert W. Casby Donna R. Corcoran Robert A. DeLello Gerard J. DiSanti Frederic N. Halström Your complete litigation support services provider Videoconferencing Court Reporting Video Depositions and Playback Legal/Medical Transcription Spacious Conference Rooms Mary Catuogno, Ray Catuogno, Sr. & George Catuogno Serving the legal and healthcare community since 1966 Timothy C. Kelleher III Paul F. Leavis Marianne C. LeBlanc Jodi Petrucelli Peter J. Schneider W. Thomas Smith Anthony Tarricone Valerie A. Yarashus $200 Card Paul R. Aiken Michael R. Hugo Alan S. Pierce Morton J. Shuman $150 Card Andrew Abraham Clyde D. Bergstresser Marc L. Breakstone Scott Clifford J. Michael Conley Walter A. Costello Jr. John DiBartolo Simon Dixon Norman J. Fine John R. Fox Ronald E. Gluck Jonathan A. Karon Marsha V. Kazarosian Alan J. Klevan Nancy Lyons Mary Jane McKenna Christopher A. Milne Michael Najjar Andrew D. Nebenzahl Michael J. Princi Richard J. Rafferty Jr. Frank Riccio Lloyd C. Rosenberg Jeffrey T. Scuteri Leonard A. Simon Edwin L. Wallace Kimberly E. Winter Paul F. Wynn $100 Card Joseph F. Agnelli Jr. Steven M. Ballin Bruce A. Bierhans James E. Byrne Jeffrey Catalano James T. Dangora Sr. John L. Diaz William J. Doyle Jr. Peter L. Eleey John B. Flemming Annette Gonthier-Kiely Jeffrey A. Gorlick John R. Keilty Thomas A. Kiley Richard A. Lalime Mark A. Manchera Angel Melendez Vincent J. Murray Jr. Kathleen O Donnell Gary W. Orlacchio John Rest Michael R. Rezendes Frank R. Saia Deborah M. Santello Anthony Scibelli Richard G. Shalhoub John J. St. Andre Jr. $50 Card Dennis J. Calcagno Jeffrey N. Catalano Lori A. Cianciulli John E. Heraty Martha Howe Richard E. Jussaume William J. Keller Francis J. Larkin Bruce S. Lipsey Robert R. Marchand Charles B. Moegelin Robert M. Nathan Judson L. Pierce Richard T. Tucker Robert Zaffrann $25 Card Neil A. Burns Claudine A. Cloutier Christopher M. Dailey Karen J. Hambleton Barbara M. Senecal Stephen K. Sugarman
11 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 11 IN MEMORIAM Edward J. Sullivan: farewell to an icon By Douglas K. Sheff Both the legal and political worlds lost an icon with the passing of Edward J. Sullivan. Sullivan s story is one of family. His father, Michael, was quite a role model. As a child, Michael Sullivan lost his brother and both parents in the same year. With no welfare at the time, the Sullivan children surely would have been split up and sent to various institutions. But, being a true matriarch and hero of the family, Aunt Mary Doyle wouldn t have it. She took the kids in, saved the family and supported everyone with a small luncheonette that she ran out of her kitchen, which fed streetcar workers in Harvard Square. As a young man, Michael was often exposed to Harvard University students. Several took a liking to him and, one day, dressed him up in a tuxedo. When Michael walked into the luncheonette in the tux, someone shouted here comes Mickey the Dude, and the name stuck. Mickey the Dude went on to initiate an unprecedented political legacy in Massachusetts. Douglas K. Sheff of Sheff Law Offices in Boston is a past president of the Massachusetts Academy of Trial Attorneys and a governor of the American Association for Justice. Ed s father worked hard to earn a position on the Cambridge City Council and almost lost the position, but for a young Edward Sullivan. In fact, when Ed was just 14 years old, he went to watch his dad and other candidates for City Council give their election speeches. His dad was late and all other candidates had delivered their speeches. The crowd was disbursing. The anxious teen stepped up to the podium and delivered a 10- minute contemporaneous speech on behalf of his father. The next day he couldn t remember what he had said, but apparently he had touched the crowd, and his father was reelected to the City Council. Later, Ed himself was elected to the City Council. In fact, the Sullivan family has served proudly on the City Council for decades. Ed s brother, Walter, sat on the Council for 32 years. The city has since named the Council s chamber the Sullivan Chamber. The Sullivan name has blessed other real estate in Cambridge as well. The square where Ed made his speech at age 14 is now called Sullivan Square. Ed, Walter, and most recently Walter s son, Michael, have all been elected mayor of Cambridge. But Ed had other aspirations. He believed he could help people most by improving the court system. SULLIVAN (LEFT) AND SHEFF In 1958, Ed was the first Democrat to be elected clerk of courts in Middlesex County. All of the court employees were extremely nervous. Who would lose their job? But Ed was taught to keep people together, just as Mary Doyle had kept his family together many years ago. His first official action was to announce that no one would lose their job. He was immediately accepted and loved by all in the building and the love affair continued for half a century. Ed always governed by cohesion and unity, as opposed to divisiveness and separation. He ensured absolute respect for all doing business at the Middlesex Superior Courthouse. His innovative use of computers, the one-day jury service program, and many other programs earned Ed admiration both within and beyond the commonwealth. It s no surprise that in 2000 the commonwealth changed the name of the Middlesex Superior Courthouse to the Edward J. Sullivan Courthouse. Ed attracted and worked with some of the finest clerks in any courthouse. Jimmy Lynch, Walter Sullivan and many others inspired and enabled Ed to reach new levels of excellence in courtroom management. Shortly before his death, Ed told me that his greatest accomplishment had nothing to do with politics or the court system. His greatest accomplishment was finding, marrying and living his life with his wife, Jacquelyn. Ed s love of his wife and family was obvious to all who knew him. Their love of Ed, along with that of countless attorneys, litigants, friends and professionals throughout the commonwealth, was unparalleled. May he rest in peace, and may all who knew and loved him find comfort in their memories of a great leader and a wonderful man. Legislative update: measures that support MATA s mission Continued from page 9 interest against insurers for costs accrued up to the time of payment by the insurers. House Bill 911 An Act Relative to Requiring Insurance for Taxicabs and Commercial Vehicles Requires all commercial vehicles and taxi cabs charging a fee to passengers to maintain liability insurance policies of at least $100,000 for death or injury of any one person or of at least $300,000 for accidents resulting in death or injury to more than one person. House Bill 1058 An Act to Protect Consumers in the Issuance of Automobile Insurance Policies and Bonds Prohibits the changing of any coverage, condition or definition of any motor vehicle liability policy or bond without the approval of the commissioner of insurance after notice of such proposed changes to the public and the Financial Services Committee prior to a public hearing. House Bill 912 An Act Relative to Certain Medical Examinations Amends provisions relative to automobile insurance liability insurance; requires an injured person to submit to physical examination by a licensed practitioner, selected by the insurer, as often as required but no more than one each six months; requires said examinations to be conducted in a location accessible from the injured person s residence; failure to comply constitutes a violation of Chapter 176D. House Bill 910 An Act to Repeal No Fault Motor Vehicle Insurance Repeals existing provisions relative to the inclusion of personal injury protection in motor vehicle insurance policies and maintenance of assigned claim plans by motor vehicle insurance companies; amends various provisions relating to coverage under assigned risk plans including, but not limited to increasing the limits of medical payment coverage and providing wage protection coverage thereunder; articulates mandatory coverage by companies issuing motor vehicle insurance including, but not limited to medical payment provisions without regard to negligence or fault and wage protection coverage; repeals tort threshold requirement MATA workers compensation legislation House Bill 1862 An Act Relative to Workers Compensation Amends provisions relative to the payment of workers compensation benefits by insurers; requires insurers to pay workers compensation benefit allowances to workers with bodily disfigurement in the amount up to 29-times the average weekly wage in the commonwealth; increases benefit allowances for burial expenses from $4,000 to $8,000; repeals provisions limiting compensation for workers who are partially incapacitated; authorizes extension of said benefits for the articulated cases including, but not limited to workers who return to work pursuant to individual written rehabilitation plans, workers who are found unsuitable for vocational rehabilitation, and workers who return to employment for wages less than their pre-injury wages. House Bill 1828 An Act Relative to Injured Workers Authorizes administrative judges to determine the rates for health care services in workers compensation cases, if the insurer, employer and health care service provider cannot agree, or if equity and justice require a rate other than one otherwise provided. House Bill 1826 An Act Relative to Impartial Medical Examiners Amends various provisions relative to the modification or discontinuation of workers compensation benefits by employers; amends regulations pertaining to the appointment of impartial physicians to examine beneficiary employees, and use of the reports of impartial physicians to authorizing benefit changes; authorizes the use of reports as evidence in hearings pertaining to benefit discontinuation or modification; repeals provisions designating reports as binding on all parties; regulates the contents of medical reports; designates failure to report impartial physicians for examination as sufficient cause for suspension of workers compensation benefits. For copies of legislation, visit the Legislature s website, For more information about MATA s Legislative Committee, log on to
12 12 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN Workers Comp Dinner & Reception
13 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS Workers Comp Dinner & Reception Sponsors of workers comp event saluted The Massachusetts Academy of Trial Attorneys would like to thank the following sponsors of the Workers Compensation Dinner: Alan S. Pierce & Associates Torrisi & Torrisi Branca, Powell & Joyce...and the sponsors of the Workers Compensation Reception: James S. Aven Law Office of Douglas F. Boyd Boyle, Morrissey & Campo Richard N. Curtin Curtin, Murphy & O Reilly Bruce S. Lipsey John K. McGuire Jr. Bernard J. Mulholland Mark A. Teehan Torrisi & Torrisi John C. White
14 14 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN 2007 Two federal cases a boon for trial bar, clients By Robert S. Peck and Jesse Merriam The publication National Perspective recently profiled two U.S. District Court cases that found laws affecting trial lawyers or their clients unconstitutional. One, Vanguard Car Rental Inc. v. Huchon, No. 06-CV (S.D.Fla. Sept. 4, 2007) the product of work by members of the Center for Constitutional Litigation and Miami s Leesfield, Leighton & Partners struck a federal statute that immunized rental car companies from vicarious liability. The second, Alexander v. Cahill, No. 5:07- CV-117, 2007 WL (N.D.N.Y. July 23, 2007), invalidated new restrictions on attorney advertising. Huchon : immunity for rental car companies unconstitutional In Huchon, the court held that a two-yearold federal rental-car immunity statute, known as the Graves Amendment, which abrogated most state vicarious liability laws, was beyond Congress power under the Commerce Clause. Vanguard Car Rental brought the case after it leased a car to Michael Jankowski, who was later involved in an accident with Jean Francois Huchon. Vanguard sought a judgment from the U.S. District Court for the Southern District of Florida declaring that the federal Graves Amendment, a substantive provision tucked away in a 900-page transportation appropriations bill, constitutionally preempts state laws that impose vicarious liability on lessors for their lessees tortious acts. Meanwhile, Huchon filed a personal-injury action against Vanguard in state court, claiming that Vanguard was vicariously liable under Florida law for Huchon s injuries. Huchon s action was removed to federal court where it was consolidated with Vanguard s declaratory-judgment action. The United States intervened to defend the statute s constitutionality. In Huchon, the court concluded that the Graves Amendment preempted Huchon s personal-injury claim. However, there remained a question about whether the Graves Amendment was an exercise of a legitimate power of Congress. The U.S. Supreme Court has established that the Commerce Clause gives Congress Robert S. Peck is president of the Center for Constitutional Litigation, a Washington, D.C., law firm. Peck teaches an advanced constitutional law seminar at the law schools at American and George Washington universities. He is a member of the Board of Overseers of the RAND Institute for Civil Justice and the Board of Directors of the National Center for State Courts, as well as a past-president of the U.S. Supreme Court Fellows Alumni Association. Jesse Merriam is a junior associate at CCL. the power to regulate the channels of interstate commerce, the instrumentalities of interstate commerce, and activities substantially related to interstate commerce. The Huchon court held that, because the Graves Amendment regulates the assignment of liability, rather than the leased cars or the highways on which lessors drive them, the amendment does not regulate an instrumentality or a channel of commerce, but state liability law. The more difficult question, however, was whether the Graves Amendment regulated an activity substantially related to interstate commerce. To answer this question, the court looked to the four-part substantial effects test that the U.S. Supreme Court described in U.S. v. Morrison (2000). The first two factors examine the legislative history and statutory text for congressional findings concerning interstate commerce and a provision expressly limiting the statute s jurisdictional reach. The third and fourth factors considered the nature of the regulated activity to determine whether it is commercial and whether the connection between the regulated activity and its effect on interstate commerce is attenuated. Because there was nothing in the Graves Amendment or the official congressional findings indicating the amendment s effect on or relationship to interstate commerce, and because regulating vicarious liability is neither commercial nor closely related to interstate commerce, the court held that the Graves Amendment does not regulate an activity substantially affecting interstate commerce. Huchon, thereby, became the first federal court case to find the Graves Amendment unconstitutional. Even more importantly, Huchon could have broad repercussions for the federal government s power to preempt other state tort laws. Alexander : attorney-advertising restrictions struck down Ethical rules governing lawyer advertising have frequently conflicted with First Amendment guarantees. The latest attempt to place limits on lawyer advertising again has run afoul of free-speech concerns. The litigation over New York s new rules began when Alexander & Catalano, a Syracuse law firm known for running advertisements that portray the firm s lawyers as heavy hitters who tower over apartment buildings and attract space aliens as clientele, faced an end to its advertising strategy because New York adopted heightened attorneyadvertising standards, effective Feb. 1, In the Alexander case, the firm, along with public-interest organization Public Citizen, sued the disciplinary committees charged with enforcing the rules, claiming that many of New York s new rules were unenforceable because they violate the Free Speech Clause. The U.S. District Court for the Northern District of New York began its analysis by classifying the plaintiffs challenges. The first class of challenged provisions included provisions restricting advertising content. These content restrictions prohibited attorneys from using: advertisements containing endorsements and testimonials about matters still pending; advertisements portraying judges; attention-attracting advertisements that lack relevance to selecting counsel, including portraying attorneys with characteristics unrelated to legal competence; advertisements portraying lawyers or law firms in a fictitious way; a nickname, moniker, motto or trade name that implies an ability to obtain results; pop-up and pop-under advertisements on websites other than those that the advertising attorney or law firm owns; and a domain name for an internet website unless it satisfies certain requirements. Asecond class included provisions restricting contact between attorneys and accident victims. These solicitation restrictions imposed a thirty-day moratorium on communications to victims, their families, or their representatives relating to a specific personal injury or wrongful death event, except where a legal filing is required within thirty days, [in which case] the moratorium is limited to a fifteen-day cooling off period. The third class consisted of all the restrictions to the extent that they applied to non-profit legal organizations that do not charge clients. After dividing the challenged restrictions into these three classes, the court then explained that because attorney advertising is constitutionally protected commercial speech, New York s restrictions were subject to the constitutional test for restrictions on commercial speech. Central Hudson Gas & Electric Co. v. Public Service Commission of New York (1980). The Central Hudson test prohibits the government from restricting commercial speech that is neither false, misleading, nor related to an unlawful activity, unless the government asserts that it has a substantial interest in the restriction; demonstrates that the restriction directly and materially advances these interests; and establishes that the restriction s breadth is reasonably proportionate to the interests served. Having divided the plaintiffs claims into three classes and explaining that the Central Hudson test applied to all the challenged restrictions, the court proceeded to analyze each class of restrictions. The court found that six of the seven challenged content restrictions failed the Central Hudson test; the only content restriction that the court upheld was the one on using a domain name for an internet website. Four restrictions violated Central Hudson s second prong because the defendants did not submit sufficient evidence to establish that they directly and materially advanced New York s substantial interest in protecting consumers from misleading attorney advertisements. These four restrictions were the restriction on endorsements and testimonials, the restriction on attention-attracting advertisements, the restriction on portraying lawyers or law firms in a fictitious way, and the restriction on pop-up and pop-under advertisements. In addition, two restrictions, the restriction on judge portrayals and the one on trade names implying an ability to obtain results, satisfied Central Hudson s second prong but violated the third because they suppressed substantially more speech than necessary. Turning to the second class of restrictions, the court found that New York s solicitation restrictions were constitutional under the Supreme Court s decision in Florida Bar v. Went For It, Inc. (1995), which upheld a moratorium on contact between lawyers and accident victims. Just as Florida did in justifying the restrictions at issue in Went For It, New York had submitted a report to support its limited moratorium. Finally, the court considered whether it should broadly construe the term advertisement so that all of the restrictions would apply to communications disseminated by nonprofit legal organizations that do not charge their clients. The court acknowledged that this broad construction would render at least the solicitation restrictions unconstitutional because the U.S. Supreme Court has held that solicitation restrictions may not apply to lawyers seeking prospective litigants for the purpose of expressing political beliefs. In re Primus (1978). Finding evidence that New York enacted the amendments seeking to comply with Primus, the court narrowly construed advertisement to include only commercial advertising that is, communications that lawyers disseminate for pecuniary gain. The constitutionality of New York s restrictions, however, is far from resolved. In late August, the New York Attorney General filed a notice of appeal challenging the District Court s ruling. It remains to be seen how the U.S. Court of Appeals for the Second Circuit will view their constitutionality. For the time being, though, the District Court decision stands and New York may not apply several content restrictions to advertising lawyers; nor may New York apply any of the restrictions to non-commercial communications. Furthermore, there will likely be additional constitutional challenges, as the plaintiffs in Alexander did not challenge several constitutionally problematic provisions. For example, Alexander did not address the constitutionality of New York s rule requiring lawyers to print, retain and file all updates to their websites. Resolution of these issues will be critical as other states, such as Louisiana and Indiana, consider heightening their own attorney-advertising standards.
15 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS Board of Governors The Massachusetts Academy of Trial Attorneys presents its Board of Governors: Officers (terms expire 2008) Paul F. Leavis President Mary Jane McKenna President-elect Chris A. Milne Treasurer Kimberly E. Winter Secretary Marsha V. Kazarosian Immediate Past President Regional Governors (terms expire 2009) Andrew Abraham Suffolk County Ted Bassett Worcester County Richard D Agostino Essex County John DiBartolo Hampshire County Gerard J. DiSanti Hampden County Chris Dodig Berkshire County David P. Dwork Suffolk County Andrew Fischer Suffolk County Donald Gibson Plymouth County Ronald Gluck Suffolk County Saba Hashem Essex County Michael Hugo Suffolk County Martha E. Howe Middlesex County Jonathan A. Karon Suffolk County Michael Najjar Middlesex County Andrew Nebenzahl Norfolk County A.J. O Donald Hampden County Donald Pitman Suffolk County Richard J. Rafferty Jr. Worcester County Frank Riccio Norfolk County Steven P. Sabra Bristol County Morton J. Shuman Middlesex County John J. Stobierski Franklin County Karl Topor Middlesex County Paul F. Wynn Barnstable County Non-Regional Governors (terms expire 2008) Marylin A. Beck Leo V. Boyle Marc L. Breakstone John J. Carroll J. Michael Conley Robert I. Feinberg Norman J. Fine John B. Flemming Annette M. Gonthier-Kiely Stanley D. Helinski T. Mark Herlihy Michael P. Holden Timothy C. Kelleher III John Morrissey Charles A. Murray III Gary W. Orlacchio Jodi M. Petrucelli Lloyd C. Rosenberg Rico Shaloub AAJ Frederic N. Halstrom Governor Douglas K. Sheff Governor Edwin L. Wallace Governor Marianne C. LeBlanc Delegate Michael K. Gillis Delegate Annette Hill Green Minority Delegate Presidential Appointments (terms expire 2008) Alice B. Braunstein Thomas L. Campoli Scott J. Clifford Phillip J. Crowe Jr. Robert A. DeLello Paul J. Driscoll Nance Lyons Andrew C. Meyer Jr. Michael R. Rezendes Earlon Seeley Jr. Past Presidents Charles W. Barrett Jr. David R. Bikofsky Robert V. Costello Walter A. Costello Jr. Warren F. Fitzgerald Michael K. Gillis Frederic N. Halstrom Patrick T. Jones Marsha V. Kazarosian James F. Meehan Michael E. Mone Kathleen M. O Donnell Alan S. Pierce Camille F. Sarrouf Steven H. Schafer Douglas K. Sheff Neil Sugarman Paul R. Sugarman Anthony Tarricone Edwin L. Wallace Valerie A. Yarashus
16 16 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN 2007 Commonwealth Circle Contributers excel in 07 We are grateful to each Circle Contributor for demonstrating a continuing commitment to the Massachusetts Academy of Trial Attorneys efforts to preserve and enhance the civil justice system. Liberty Club ($15,000 - $25,000) Leo V. Boyle Phillip J. Crowe FORGE Consulting Patrick T. Jones Andrew C. Meyer Michael E. Mone Douglas K. Sheff Neil Sugarman Freedom Club ($10,000 - $15,000) Alliance Print Experienced Resolution Resources Patriots Club ($5,000 - $10,000) Catuogno Court Reporting Services & STEN-TEL Transcription Services Citizens Bank of Massachusetts Joseph J. Cariglia John J. Carroll Jr. David P. Dwork Frederic N. Halstrom Paul E. Leavis Alan S. Pierce Joel H. Schwartz Jeffrey T. Scuteri Valerie A. Yarashus Revolutionaries Club ($1,000 - $5,000) Andrew M. Abraham Joseph F. Agnelli Jr. Paul R. Aiken Steven M. Ballin Charlie W. Barrett Jr. Clyde D. Bergstresser Bruce A. Bierhans David R. Bikofsky Leslie E. Bloomenthal Michael B. Bogdanow Marc L. Breakstone James E. Bryne Dennis J. Calcagno Thomas L. Campoli Gerard B. Carney Robert W. Casby Jeffrey N. Catalano Lori A. Cianciulli Scott J. Clifford Sherrill Cline J. Michael Conley Donna R. Corcoran Walter A. Costello Jr. James T. Dangora Sr. Robert A. DeLello John L. Diaz John DiBartolo Simon Dixon Joseph R. Donohue William J. Doyle Jr. Paul J. Driscoll Peter L. Eleey Robert J. Feinberg Daniel C. Finbury Norman J. Fine John B. Flemming Michael A. Foglia John R. Fox Ronald E. Gluck Annette Gonthier-Kiely Jeffery A. Gorlick Lawrence E. Hardoon John E. Heraty T. Mark Herlihy John D. Hislop III Martha Howe Michael R. Hugo Richard G. Jusseme Jonathan A. Karon Marsha V. Kazarosian John A. Keilty Timothy C. Kelleher III Paul F. Kenney Thomas M. Kiley Alan J. Klevan Richard A. Lalime Marianne C. LeBlanc Legal Talk Network LexisNexis Bruce S. Lipsey Francis J. Lynch Nance Lyons MediVisuals Angel Melendez Chris A. Milne James T. Morris Thomas P. Mulvey Jr. Vincent J. Murray Jr. Michael Najjar Robert M. Nathan Andrew D. Nebenzahl Kathleen M. O Donnell Gary W. Orlacchio Peachtree Settlement Funding Michael J. Princi Jodi M. Petrucelli Richard J. Rafferty Jr. John B. Rest Michael R. Rezendes Robson Forensic, Inc. Robert M. Rosen Lloyd C. Rosenberg Steven P. Sabra Deborah M. Santello Frank R. Saia Steven H. Schafer Peter J. Schneider Anthony Scibelli Earlon Seeley Richard G. Shalhoub Morton J. Shuman Leonard A. Simon W. Thomas Smith Gerald W. Sousa John St. Andre Jr. John J. Stobierski Thomson-West William H. Troupe Edwin L. Wallace Workers Comp RX Paul F. Wynn Colonials Club ($500 - $1,000) Paul L. Cummings Marvin H. Greenberg Thomas G. Horgan John F. Keenan Francis J. Larkin Legal Nurse Consultants William F. Looney Thomas J. Lynch Nance Lyons Robert J. Marchand Joan McDonough Charles A. Moegelin Michael Najjar Robert M. Nathan Gerald A. Palmer Judson L. Pierce Frank Riccio Richard T. Tucker Kimberly Winter Minutemen Club ($1 - $500) Alice B. Burkin Neil A. Burns Christopher M. Daily Joanne D Alcomo Robert A. DiTusa Richard K. Donohue Christopher W. Driscoll Neil R. Driscoll Karen J. Hambleton Mark W. Helwig Mark A. Machera Neil V. Madden Judson L. Pierce Barry C. Reed Jr. Gregory V. Roach Neil J. Roach Martin B. Schneider Barbara M. Senecal Frank J. Shealey Ronald Stoia Stephen D. Walsh Timothy H. White Kimberly E. Winter Albert P. Zabin Robert Zaffrann
17 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 17 Nothing frivolous about our experience Continued from page 1 awoke with a right arm that did not work. Worse, the slightest breeze or the touch of clothes made his arm feel as if it was on fire. Today, his condition would probably be called Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome. I m not sure it had a name back then. I only remember that because of his injured arm, my dad did not work for a long time, was in agony for much of the time, and it created financial nightmares for both of my parents for the next several years. Again, though I was not mature enough at the time to fully appreciate what my parents went through as a consequence of these events, I have two lasting memories. The first is probably a testimony to how self-absorbed I was as a teenager. It is of the time when my father told me that I couldn t expect any help from them with the cost of college. The second memory, somewhat less specific, is of coming home one fall afternoon from a weekly touch football game to witness my parents sitting at the kitchen table, moving bills from pile to pile, trying to figure out which to pay and which to defer. I did not become a trial lawyer because of my parents experiences or my memories of their consequences. When my parents were hurt, the thought of litigation was a foreign concept to me. Besides, my mother was hurt falling down the stairs in her own home. That I became a trial lawyer was more the result of chance, good fortune and the largesse of others. Whatever the reasons, I became a trial lawyer, and doing so, I became Paul F. Leavis is president of the Massachusetts Academy of Trial Attorneys and a partner in the Boston law firm of Leavis & Rest. an advocate for people injured and suffering through the negligence of others. The importance of our role as advocates for those in need cannot be overshadowed by political posturing and public misconception. Recently, I watched Karl Rove interviewed on Meet the Press (some might say that I need a hobby). In response to a question about Iraq and WMD s, Rove somehow worked into his answer a comment that a major problem in this country is that there are too many frivolous lawsuits brought by trial lawyers. While admiring Rove s facile agility of avoiding straightforward questions, I was nonetheless roiled at the sloganistic reference to our legal system and my apparent role within it. Are there frivolous lawsuits? I would perhaps be naïve to suggest that no such thing exists. But, here is my point: Every day, people s lives are turned upside down because of the actions of others; they didn t ask for it, they certainly didn t want it and, in most cases, they are ill-prepared to deal with it. At the same time, they are confronted by intractable insurers intent on denying or minimalizing their claims. Frequently, the members of the Massachusetts Academy of Trial Attorneys are all that stand between our clients and financial ruin. I am proud to be a trial attorney. I am proud that in the course of my daily activities I strive to undue some small part of the financial, physical and emotional devastation that all too often results when people are injured. Not all injuries are compensable. My parents experiences are evidence of that fact. The consequences of these injuries are all too real however. As members of MATA we should not be shy of what we do. Our clients need us. We need constantly and vigorously to stand up for our clients and what is right. If we don t, who will? That my friends, is hardly frivolous. Upcoming events November th Annual Fall Conference Bermuda November NATLE Government Affairs Conference Providence, R.I. November 20 Board Meeting 4-6 p.m. Citizens Bank 53 State St., 8th floor, Boston November 28 6th Annual Diamond Ball Boston Harbor Hotel January 8 Board Meeting 4-6 p.m. 7 New England Executive Park, Burlington January AAJ Mid-Winter Convention Puerto Rico Academy seeks Journal input If you would like to write an article for the MATA Journal, or would like to see an article on a specific topic or issue, call Mike Conley at (781) or
18 18 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN 2007 Navigating the waters of maritime claims Continued from page 1 for suits against the United States. Such suits are permitted only by statute. The Suits in Admiralty Act is a waiver of sovereign immunity for admiralty-based actions against the United States. 46 U.S.C The Public Vessels Act allows a cause of action against the United States arising out of the activities of public vessels and their personnel. 46 U.S.C Actions brought pursuant to either act must be brought within two years. 46 U.S.C Unlike the Federal Tort Claims Act, there is no administrative claim requirement for suit filed under either the SAA or the PVA. An exception to this rule is for injured Jones Act seamen employed aboard the Maritime Administration s vessels (MARAD is the successor to the War Shipping Administration). 46 C.F.R The claim requirements are specific and must be followed to the letter. 46 C.F.R Claims must be filed with the ship s manager or general agent; a copy of the claim must be filed with MARAD. 46 C.F.R Suit cannot be filed until the claim has been properly filed and disallowed by MARAD. 46 C.F.R Admiralty Extension Act: This act extends admiralty and maritime jurisdiction to cases where an injury to person or property is caused by a vessel on navigable waters, even though the injury or damage is consummated on land. 46 U.S.C If the action is against the United States, an administrative claim must first be presented in writing to the agency owning or operating the vessel causing the injury or damage. 46 U.S.C (c)(2). Acivil action may not be brought until the expiration of the six month period after the claim has been presented. Other maritime claims: Other maritime claims for personal injury must be brought within three years. These include claims brought pursuant to the Jones Act, under DOHSAor under the general maritime law. Claims by vessel owners: For the first time in your career, you may find that your injured client is being sued by the defendant and is on the other side of the v. A unique feature of the maritime law is that a vessel owner may bring an action against an injured or damaged party pursuant to the Limitation of Liability Act. 46 U.S.C The owner may file the civil action in a U.S. District Court in admiralty jurisdiction within six months after the claimant gives the owner written notice of a claim. 46 U.S.C The procedure itself is governed by the act, as well as Rule F of the Supplemental Thomas M. Bond, of The Kaplan/Bond Group in Boston s Seaport District, has specialized in maritime law for 22 years. He can be reached at Rules for Admiralty or Maritime Claims and Asset Forfeiture Claims. Avessel owner is entitled to limit its liability after a maritime incident or casualty to post casualty value of the vessel and pending freight, except when the loss occurred due to its privity or knowledge. 46 U.S.C (b). In a claim for personal injury or death, the privity or knowledge of the master or the owner s superintendent or managing agent, at or before the beginning of each voyage, is imputed to the owner. 46. U.S.C (e). The vessel owner has the burden of proof to show lack of privity or knowledge. Coryell v. Phipps, 317 U.S. 406, 409 (1943). Forum selection clauses Although the plaintiff may reside in Massachusetts and have boarded the cruise ship at Boston s Black Falcon Terminal, suit may have to be filed elsewhere. Nearly all passenger tickets have forum selection clauses, which have been held by the Supreme Court to be valid and enforceable. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991); Reynolds-Naughton v. Norwegian Cruise Line Ltd., 386 F.3d 1 (1st Cir. 2004) (enforcing clause in ticket requiring Massachusetts resident to bring her suit in Florida). Employees suing employers in tort Consider this scenario: a client walks into your office and is already receiving workers compensation benefits from her employer. After a thorough investigation, you are unable to find a negligent third party. You do, however, find negligence on behalf of a fellow employee. Consequently, you tell her that you cannot help her because her only remedy is workers compensation. Three years elapse, and you receive a call from her legal malpractice lawyer, wondering why you never filed a complaint against her employer. Workers may receive workers compensation benefits from their employers, and sue their employers in tort as well. In order to do so, they must establish either negligence under the Jones Act, or negligence of a vessel owned, operated or controlled by their employer pursuant to the LHWCA. It is by now universally accepted that an employee who receives voluntary payments under the LHWCAwithout a formal award is not barred from subsequently seeking relief under the Jones Act. Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 91 (1991) citing to G. Gilmore & C. Black, Law of Admiralty, 435 (2d ed. 1975); see also Rohrbacker v. Jackson & Jackson, Inc., 1991 WL (E.D. La. 1991). ( However, in a situation in which seaman status has not been determined, and indeed, is questionable, a plaintiff who pursues all potentially available remedies should not be considered to be electing a remedy. ) In general, workers injured in the course of their employment have two potential causes of action. First, Jones Act seamen may sue their employers for negligence. 46 U.S.C In the alternative, maritime workers injured by the negligence of a vessel may sue the vessel s owner for negligence, even if it is their employer. 33 U.S.C. 905(b). Following is a rough outline of the law pertaining to each claim. The Jones Act: The Jones Act extended a right of action to any seaman who suffers injury in the course of her employment. 46 U.S.C In order to file a Jones Act claim, one must qualify as a seaman. The key to seaman status is employment-related connection to a vessel in navigation. McDermott International, Inc. v. Wilander, 498 U.S. 337, 355 (1991). It is not necessary that a seaman aid in navigation or transportation: the ship s cleaners, cooks and croupiers all qualify. In addition, a worker s connection to the vessel must be substantial in duration and nature. Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). The worker s connection may be to a fleet of vessels under common ownership or control. Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997). The final step in a Jones Act analysis is whether the waterborne structure involved in the incident was indeed a vessel. Watercraft of every type and description can be considered as vessels. In a case which our office took to the U.S. Supreme Court, the dredge digging the trench for placement of the tubes comprising the Ted Williams Tunnel was held to be a vessel. Stewart v. Dutra Construction Co., 543 U.S. 481 (2005). In reversing the 1st U.S. Circuit Court of Appeals, the Supreme Court adopted the statutory definition of vessel from 1 U.S.C. 3: The word vessel includes every description of watercraft or other artificial contrivance used, or capable of being used, as means of transportation on water. 1 U.S.C. 3. The court modified the definition somewhat by construing the statutory term capable to mean practically capable, stating that the question remains in all cases whether the watercraft s use as a means of transportation on water is a practical possibility or merely a theoretical one. Stewart, 543 U.S. at 495. The requirement that a seaman have a connection to a vessel in navigation that is substantial in duration and nature distinguishes sea-based employees, who are covered by the Jones Act, from land-based maritime workers, who have only a transitory connection to a vessel in navigation and are covered by the Longshore and Harbor Workers Compensation Act, which is codified at 33 U.S.C The two causes of action are mutually exclusive. Aworker cannot be both a Jones Act seaman and a maritime worker who is entitled to LHWCAcompensation benefits, or entitled to bring a cause of action pursuant to 33 U.S.C. 905(b). The Longshore and Harbor Workers Compensation Act: Workers engaged in maritime employment who are not Jones Act seamen may have a negligence cause of action in tort against the shipowner. 33 U.S.C. 905(b). This action is in addition to the claim for workers compensation benefits brought under the LHWCA. In order to bring an action, the worker must establish that she is a maritime worker injured by the negligence of a vessel. Maritime worker is defined in 33 U.S.C. 902, and includes longshoremen, harbor workers and a wide range of other employees who work on or around the waterfront. Vessel is defined in 33 U.S.C. 902(21) to include the vessel s master, officer or crewmember. Typically, the injured worker is employed by an independent contractor providing stevedoring services to a vessel. Sometimes, though, the vessel owner chooses to employ its own longshoremen. Under these circumstances, the vessel owner essentially wears two hats or acts in a dual capacity. The injured worker can recover only if he can prove that the vessel owner was acting in its capacity as vessel owner, and not in its capacity as employer. Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603 (1st Cir. 1996)(en banc), cert. denied,520 U.S. 111 (1997). Avoiding admiralty law? If the admiralty law can apply, it must apply. Admiralty law will apply to cases filed in either the state or federal court even if not specifically pleaded. The Supreme Court has stated that: With admiralty jurisdiction comes the application of substantive admiralty law. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986) citing Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 255 (1972). [O]nce admiralty jurisdiction is established, then all of the substantive rules and precepts peculiar to the law of the sea become applicable... [t]his is true even when the plaintiff decides to pursue her claim in the civil side of a federal court or in a state court. Austin v. Unarco Industries, Inc., 705 F.2d 1, 6 n.1 (1st Cir. 1983)(citations omitted). An exception to this rule is where the state s interest in the area substantially outweighs the federal maritime interest. Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623 (1st Cir. 1994) (state statute allowing damages to shellfish dealers due to oil spill applicable despite clear contradiction with federal maritime law.) Conclusion If you are unfamiliar with admiralty and maritime law, chart your course quickly but very, very carefully whenever a client walks into your office with an incident that occurred on or near the water.
19 AUTUMN 2007 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 19 Statute of Repose a cause for concern Continued from page 4 Mass.App.Ct. 287 (2004). ( By its clear and express terms, Section 2B limits the period for bringing any claim arising from negligent design without regard to whether the owner or another party has committed the alleged negligence. Put another way, an owner that participates in the design of improvements to real property is as entitled to the protection of Section 2B as any other actor involved in such design or constructionbut only with respect to a claim for negligence in the design. ) In the case of a party providing both individualized and standardized services, the claim will not be barred simply because some design services were offered. The same theory applies where, simply because some standardized services were provided, the claim will not be barred. The court will determine where the primary function of the party lies and will apply 2B based on that determination. Fine, 57 Mass.App.Ct. 397 (2003). Suppliers and manufacturers providing standardized, non-customized components will not be protected by Section 2B. McDonough v. Marr Scaffolding Co., 412 Mass. 636, 641 (1992); Dighton v. Fed. Pac. Elec. Co., 399 Mass. 687, 696 (1987); Rosario v. M.D. Knowlton Company, 54 Mass.App.Ct. 796, 800 (2002). Some examples of situations in which 2B would not apply include: a supplier of standardized windows even with slight customization of the sill area to fit the window frame, Fine, 57 Mass.App.Ct. at 403 ( we disagree that such modifications to mass produced products are the sort of services that the Legislature ); a plumber who installed a boiler where there was no customization work of any kind and no structural work was performed, Colomba v. Fulchini Plumbing, 58 Mass.App.Ct. 901 (2003); and sellers of real estate. Sullivan v. Iantosca, 409 Mass. 796, 799 (1991). What constitutes improvement? Since the enactment of 2B, courts have wrestled with the definition of an improvement to real property as it relates to the Statute of Repose and to other issues such as mechanic s liens statutes where the language also appears. It is recognized that [t]he word improvements is of broad signification, Milligan v. Tibbetts Engineering Corp., 391 Mass. 364, 366 (1984). In applying 2B, Massachusetts has followed the usual and natural meaning of improvement a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful of valuable as distinguished from ordinary repairs. Raffel v. Perley, 14 Mass.App.Ct. 242 (1982), quoting Webster s Third New International Dictionary (1971). An improvement must itself be constructed or assembled in connection with a building or other construction. Mammoet USA, Inc. v. Entergy Nuclear Generation Co., 64 Mass.App.Ct. 37, 43 (2005). Factors considered in determining the nature of an improvement include (a) its permanence and (b) its actual effect in making the facility to which it is related more valuable or substantially more useful or productive. Mammoet, 64 Mass.App.Ct. at 46. Permanence is not, in itself, determinative of whether something is an improvement, as practically any object may be removed and replaced. McDonough v. Marr Scaffolding Co., 412 Mass. 636, 640 (1992); Snow v. Harnishchfeger, 823 F.Supp 22 (D.Mass 1993). Buildings, regardless of whether specially designed, architecturally modeled or prefabricated, are considered improvements to real property. Cournoyer v. Massachusetts Bay Transit Authority, 744 F.2d 208 (C.A. Mass. 1984). Other improvements include: roadways, Milligan v. Tibbetts Engineering Corp., 391 Mass. 364 (1984); a permanent mooring system for restaurant ship, Anthony s Pier Four, Inc. v. Crandall Dry Dock Engineers, Inc., 396 Mass. 818 (1986); residential aluminum siding, Salinsky v. Perma-Home Corp., 15 Mass.App.Ct. 193 (1983); an electrical distribution panel for an electric plant, Parent v. Stone & Webster Engineering Corp., 408 Mass. 108 (1990); a factory material lift, Rosario v. M.D. Knowlton Co., 54 Mass.App.Ct. 796 (2002); a crane system in a factory, Snow v. Harnischfeger Corp.,12 F.3d 1154 (1994); a milk evaporator in a factory, Agri-Mark, Inc. v. Niro, Inc., 214 F.Supp.2d 33 (2002); fiber reinforced concrete, Fine v. Huygens, DiMella, Shaffer & Associates, 57 Mass.App.Ct. 397 (2003); transmission lines constructed over an easement, Montaup Elec. Co. v. Ohio Brass Corp., 561 F.Supp. 740 (1993); bleachers adapted for a skating rink, McDonough v. Marr Scaffolding Co., 412 Mass. 636 (1992); foam insulation for a residential home Conley v. Scott Products, Inc., 401 Mass. 645 (1988); and plate glass panels in a student center Klein v. Catalano, 386 Mass. 701 (1982). Objects not found to constitute an improvement to real property include: a survey plan dividing property into lots without the contemplation of construction, Raffel v. Perley, 14 Mass.App.Ct. 242 (1982) (a boundary survey alone does not constitute an improvement); a transformer shipped to an industrial location where the equipment would not be placed into use immediately and would be prepared for use as a backup, Mammoet USA, Inc. v. Entergy Nuclear Generation Co., 64 Mass.App.Ct. 37 (2005); and re-paving on a highway, Dighton v. Federal Pacific Elec. Co., 399 Mass. 687 (1987). When does the Statute of Repose begin to run? The running of the six-year Statue of Repose is not contingent on the accrual of a cause of action, but rather on the earlier of the opening of the improvement to use or substantial completion of the improvement and the taking of possession for occupancy by the owner. G.L.c. 260, 2B. The statute does not begin to run if the improvement cannot be used for the service for which it was specifically designed. Agri-Mark, Inc. v. Niro, Inc., 214 F.Supp.2d 33, 41 (2002). In Agri-Mark, the defendant was hired to upgrade machinery for the plaintiff. The court held that substantial completion could not be recognized until the improvement could be used, and the improvement could only be used when it was validated. This resulted in a date later than when the machine first went into operation. Contrast this with Coca-Cola Bottling Co. of Cape Cod v. Weston & Sampson Engineers, Inc., 45 Mass.App.Ct. 120 (1998), where the Appeals Court held that substantial completion occurred when the machine first went into use and that the subsequent repairs involved only fine-tuning akin to general administration. Pursuant to the relation back doctrine of Mass. R. Civ. P. 15 (in conjunction with G.L.c. 231, 51), an amended complaint adding or changing a party against whom the claim is By Stanley D. Helinski asserted relates back to the date of the original pleading when the claim asserted in the amended pleading arose out of the same incident giving rise to the original claim. Such an amended complaint that relates back to the original complaint is deemed to be filed on the date the original complaint was filed for purposes of tolling the statute of limitations for the new defendant. This doctrine does not, however, apply to Section 2B. Statute of Limitations are conditional; the Statute of Repose is absolute. James Ferrera & Sons, Inc. v. Samuels, 21 Mass.App.Ct. 170 (1986). Likewise, the Statute or Repose will not toll in the presence of a minor or incapacitated plaintiff. Tindol v. Boston Housing Authority, 396 Mass. 515 (1986). Conclusion For plaintiffs attorneys, the Statute of Repose should be a cause for concern and vigilance. It is essential to be alert upon first interview with the client in a premises liability case to evaluate immediately any possible claims related to design professionals and also to determine the time constraints of these claims in relation to the Statute of Repose. This can be quite difficult; in some cases, the needed information may be accessible only through discovery from a defendant. Any premises case particularly a case involving a defect causing a slip, trip or fall, may very well implicate a design issue and, therefore, a Statute of Repose issue. Consequently, when a client walks in the door complaining of an accident that happened yesterday, beware that your time to file may eclipse tomorrow. New Lawyers Section shows its humanity again The Massachusetts Academy of Trial Attorneys New Lawyers section provides a valuable resource for members who are relatively new to the bar. The section provides regular social and networking events, community service projects, job fairs with local area law schools, and mentoring and law practice guidance in areas generally related to discovery and trial practice. In the upcoming year, the New Lawyers Section has planned its second annual trip to New Orleans to volunteer on a Habitat for Humanity build. The section s purpose is to provide a resource for newer attorneys to develop the skills and relationships necessary to build the high quality of legal representation offered by MATAmembers. For more information, call the MATA office at (781)
20 20 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS AUTUMN 2007 Let s kill all the lawyers : Shakespeare s tribute to trial lawyers Continued from page 1 the front line defenders of democracy. The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as the head of an army of rabble and a demagogue pandering to the ignorant, who sought to overthrow the government. Shakespeare s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to kill all the lawyers is, indeed, a classic and well-deserved compliment to our distinguished profession. Today s Jack Cades can readily be found throughout the insurance industry and in manufacturing, pharmaceutical and chemical companies. They want to dismantle the tort system. They want to disrupt the judiciary and abrogate the common law, to the detriment of the rights of individual citizens, consumers and injured persons who deserve competent representation and adequate redress for harm done to them. Over the centuries, tyrants and demagogues have come in many forms. In today s context, it is not the army of rabble and a demagogue pandering to the ignorant who cry for the demise of the lawyers, but rather modern demagogues who manipulate our governmental institutions to their own ends. Why? Because trial lawyers are the first line of defense to prevent irresponsible elements within the insurance, manufacturing and chemical companies from dismantling the tort system, disrupting the judiciary and abrogating the common law to the detriment of the rights of individual citizens, consumers and tort victims. Doubtless, if Shakespeare could put quill to parchment to script analogous phrases for modern corporate tyrants, he could couch their refrain thusly: If America s democratic institutions of right to trial by jury and election of judges are Howard L. Nations is board certified by the Texas Board of Legal Specialization as both a personal injury trial lawyer and a civil trial lawyer. He is board certified on the national level as a Civil Trial Advocate by the National Board of Trial Advocates, and is certified as a diplomat of trial advocacy by the National College of Advocacy. Nations received his law degree from Vanderbilt University and a bachelor of arts degree from Florida State University. As a leader of the trial bar, Nations served on the Executive Committee and as an officer of the American Association for Justice, formerly known as ATLA, from July 1990 to 1995, serving as vice president, secretary and treasurer. He is president of the Belli Society, a past-president of the Texas Trial Lawyers Association, past-president of the Southern Trial Lawyers to be abolished, first let s discredit all the lawyers; If American citizens common law rights to full recovery of legal damages are to be abrogated for the benefit of profit-motivated corporations, first let s defame all the lawyers; and If America s judicial system of tort reparations is to be remolded into a profit mechanism for the insurance industry, first let s degrade all the lawyers. The adversarial nature of the judicial system dictates that we will never be loved by the public, due to the high level of misunderstanding of the advocacy system. Our protection of individual rights often postures us as the foe of government and business with resulting enmity against us from those quarters. If enduring lawyer bashing is the price we pay for protecting individual freedoms, then so be it. It is a small price to pay as long as we do not allow the degrading of lawyers to interfere with the performance of our professional obligations by poisoning professional pride or reducing the zeal with which we represent our clients. One major danger of lawyer-bashing to our profession is the effect which it can have on us, individually and collectively, as lawyers and as a profession. If we lose our professional self-respect, America loses far more because our effectiveness in the democratic process will be damaged. The seminal point in maintaining our self respect when confronting lawyer bashing is for those of us in the profession to review our historical precedence in order to understand the role which our legal ancestors played in establishing and defending America s democratic institutions. Through this historical perspective we can better understand our position as the primary defenders of democracy. As lawyers, we are the beneficiaries of a Association and trustee of the American Jury Foundation. During his 40-plus years of trial practice, he has tried cases in the areas of product liability, wrongful death, medical malpractice, real estate fraud, insurance bad faith, will contests, breach of contract, child custody, divorce, criminal defense and a variety of personal injury and workers compensation cases, both from the plaintiffs and defendants side of the docket. Nations now specializes in business litigation and continues to handle large catastrophic injury and wrongful death cases. His firm is currently emphasizing representation of plaintiffs in pharmaceutical mass torts such as injuries and deaths resulting from the Ortho Evra birth control patch and the antipsychotic medications such as Seroquel and Zyprexa. rich and unparalleled heritage from the past, the bearers of a huge mantle of responsibility in the present and the preservers and protectors of the individual rights of American citizens for the future. Reduction of that effectiveness is a major goal of our detractors since the power of the people has always been tied inextricably to the influence of lawyers. We are currently engaged in a major power struggle over whether power in America shall remain with the people, through the exercise of individual freedoms, or whether power will continue the shift to government, corporations and the judiciary and away from the people. If power is to be transferred from the people to governments and corporations, it is necessary to reduce the powers of lawyers. As part of this power struggle we confront an exponential growth in a well orchestrated regimen of lawyer-bashing which is designed to silence our voices and reduce our ability to stand between the abuse of governmental power and the individual, the abuse of corporate power and the individual and the abuse of judicial power and the individual. While we are fighting this battle daily in the legislative halls and our public relations efforts are directed toward those who occupy the jury box and the voting booth, we must not allow the lawyer bashing to reduce our own self esteem, as individual lawyers or as a profession. The idea of silencing lawyers in order to destroy individual freedom has been around for centuries. But it has been raised to a new art form by corporations without consciences. Heedlessly they compound their wrongs against consumers and workers with assaults on lawyers and crass distortions aimed at the mass media. Trial lawyers are the first and perhaps only defense against such perfidy, and history tells us we will prevail. In 17th-century England, Oliver Cromwell, in an effort to thwart individual freedoms, decreed that no more than three barristers could congregate outside of court. He recognized that the greatest threat to his own tyrannical dictates was the collective commitment of the London Society of Barristers to the principles of freedom expressed in the Magna Carta. In 18th-century France, the revolution altered the political face of the world by moving the focus of government from the rights of royalty, tyrants and dictators to the rights of individuals. Three major political principles emerged liberty, equality and fraternity. From these evolved the social and political systems we know today as democracy, socialism and communism. Only one of these, democracy, granted the individual freedoms now under attack. In 20th-century Europe, Adolf Hitler, the quintessential despot, asserted: I shall not rest until every German sees that it is a shameful thing to be a lawyer. In the entire history of this planet, individual rights were never more threatened. Hitler s mantle of destroying lawyers as a predicate to destroying rights of individuals is carried forward today by a carefully calculated campaign of libelous tyranny against lawyers and the rights of American citizens. Hence, the concept of silencing lawyers by those who seek to subjugate freedom of individuals has been attempted for centuries but has been successfully resisted in America by strong willed citizens represented by the legions of lawyers who have successfully preserved and protected the Constitution and Bill of Rights against such attacks. If tort deformers prevail, American citizens will suffer the ultimate irony as England has, that at the same time the world is attempting to emulate America and its democratic institutions, American citizens, in the name of international business competitiveness and insurance profits, will lose those same institutions which make us the exemplar of freedom for the world. This shall not occur as long as the legal profession stands guard at the gates of democracy, accompanied by judges and legislators who respect the rights of individual citizens. When the robber barons of 19th-century America sacrificed the lives of their employees in unsafe workplaces throughout the country, lawyers and judges in courtrooms were breathing life into the Constitution and gradually and painstakingly protecting, on a case-by-case basis, the individual rights of American citizens. Therefore, as we carry forward the mantle of responsibility for protecting those hard-won rights, we must not shirk from the media and legislative attacks on our noble profession. Both as professionals and individual attorneys, we must never lose sight of the respect we deserve for the role we play in society. We must bring our individual and collective talents to bear to defend freedom with pro bono work for the disadvantaged, consumer protection advocacy for those not yet killed or maimed by defective products, protection of the civil liberties of every individual whose rights are threatened, and legislative advocacy, both offensive and defensive, in state and federal legislative halls. While the insurance industry and other
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