Articles Posted in Negligence

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If you have been injured by a faulty medication, you may be able to hold the drug company accountable for your injuries if your case meets certain standards. The Massachusetts Supreme Court recently heard a case regarding drug companies and their responsibilities regarding generic drugs and the required labeling. The court held that cases against drug companies based on medication injuries from generic versions of drugs can only go forward if the original manufacturer knew about possible injuries but intentionally failed to update this label. Cases against pharmaceutical companies are not only complicated, but they can also be expensive due to the resources that pharmaceutical companies have at their disposal. If you are concerned that you have been injured from a medication, along with seeking the necessary medical care to treat your injuries, you should also contact a knowledgeable Massachusetts product liability attorney as soon as possible to help you with your case.

Generic Labeling Requirements 

In order to bring a new drug to market, drug manufacturers must go through an onerous approval process with the Food and Drug Administration (FDA). Part of the process includes approval of the warning label for the drug that alerts consumers to potential side effects and other risks of the medication. The process for bringing generic versions of already existing drugs to market is much simpler. The manufacturers of generic drugs just need to prove that their medications are essentially the same as the name-brand drug in terms of active ingredients, strength, and route of administration. In order to get FDA approval, generic medications are legally required to show that the warning label is exactly the same as the name-brand medication. Therefore, a generic version is required to have the same label as the name-brand version.

A Massachusetts farmer owned a dump truck for hauling soil. One morning in April 2009, he was seen at his farm working on the truck. Later that day, he was found dead underneath it, with his clothing caught up in a spinning universal joint (U-joint) that was part of the mechanical system used to tilt the truck. The medical examiner identified the cause of death as accidental asphyxiation.

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As an executrix of his estate, his widow filed a Massachusetts wrongful death action. She sued, among others, Mack Trucks, which manufactured the original version of the truck, and Parker-Hannifin Corporation, which had acquired the assets of Dana Corporation. Dana manufactured a piece of equipment known as a “power take-off” (PTO), which was another part of the system used to tilt the dump body of the truck. In two separate summary judgment rulings, different superior court judges ruled in favor of each of these defendants. The Massachusetts Court of Appeals affirmed the judgments.

On appeal, the plaintiff did not argue that the incomplete vehicle that Mack Trucks sold, or the PTO that Dana sold, contained any design defect. Instead, the gravamen of her claims was that the manufacturers had a duty to warn installers and end users about the dangers posed by the use of unguarded auxiliary drive shafts and U-joints because such future uses were foreseeable. After all, she argued, the transmission of the truck was designed so that it could accept a PTO, and PTOs could be operated to power an auxiliary drive shaft. In fact, the plaintiff maintained that the foreseeability of the risks posed by exposed auxiliary drive shafts and U-joints was best demonstrated by the fact that Mack Trucks and Dana each provided some warning about them (warnings that the plaintiff claimed ultimately were inadequate). In the alternative, the plaintiff argued that even if the defendants did not face an independent legal duty to warn about such dangers, they voluntarily assumed such a duty when they provided their warnings about such uses.

A recent case arose from a bicycle collision on the Cape Cod Rail Trail between a child on a supervised school field trip and a passing cyclist. The injured cyclist and his wife appealed from a Superior Court judgment entered on the defendants’ motion for summary judgment, dismissing their negligence claims against the town of Williamstown and others. On appeal, the plaintiffs contended that (1) the chaperones who supervised the field trip were not public employees and thus could be held personally liable for their negligence, and (2) the Massachusetts Tort Claims Act (MTCA) did not preclude their claims against the town. The Massachusetts Appeals Court affirmed the lower court’s judgment for the defendants in this Massachusetts bicycle accident case.

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The plaintiffs argued that the lower court erred when it concluded that the chaperones supervising the elementary school field trip were public employees as a matter of law. They suggested that the chaperones were independent contractors who had broad discretion in exercising their duties and therefore should not be afforded the liability protections provided by the MTCA.

The test for determining whether an individual is a public employee, the appeals court explained, is the same as that used to establish whether an agent is a servant for whose negligent acts a principal may be liable under the common law doctrine of respondeat superior. The basic question is whether a person is subject to the direction and control of a public employer.

A defendant and a third-party plaintiff, C M & B, Inc. (CMB), a general contractor, appealed from a judgment dismissing its indemnification and related claims against its subcontractors Ferreira Concrete Forms, Inc. (Ferreira), and Laserdig. The trial judge ruled, among other things, that the indemnification claim was barred by a governing Rhode Island statute. The Massachusetts Appeals Court agreed and affirmed.

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In 2009, CMB, having contracted with a property owner to construct a retail store in Rhode Island, subcontracted certain concrete work to Ferreira and certain underground utility work to Laserdig. The subcontracts specified that they were to be construed in accordance with Rhode Island law, and they included indemnification clauses. The owner separately contracted with Meade Construction, Inc. (Meade), to perform certain roofing work.

On September 13, 2009, just as Meade was about to commence work, a tree fell on the partially completed building. Since time was of the essence, CMB asked Laserdig if its on-site personnel could assist in clearing the tree, and Laserdig agreed. Although Ferreira had largely completed its concrete work and had no employees on the site that day, Ferreira and Laserdig were under common ownership and sometimes loaned each other their employees as circumstances required. Accordingly, the common owner decided to loan a Ferreira employee to Laserdig in order to assist the other Laserdig employees, as well as CMB and Meade, in clearing the tree. In the course of this work, Meade placed a ladder against the building but did not sufficiently secure it, nor did CMB safety-check it. As the worker climbed the ladder, it slid to one side, causing the worker to fall and suffer injuries.

A $20 million federal lawsuit has been filed against the NFL and the New England Patriots on behalf of the former fiancee and daughter of Aaron Hernandez, who committed suicide this year while serving a murder conviction. The lawsuit was filed the same day it was revealed that Hernandez had suffered from chronic traumatic encephalopathy (CTE).

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Doctors at Boston University studied the brain of the former Patriots tight end and determined that Hernandez had Stage 3 CTE, an advanced form of the neurodegenerative disease. CTE, which can only currently be diagnosed in an autopsy, can be caused by repeated head trauma and leads to symptoms like violent mood swings, depression, and other cognitive difficulties. Hernandez’s CTE was allegedly the most severe case of CTE that the Boston University researchers had ever seen for someone of his age. Advanced stage 3 of CTE is usually found in the median age of 67-year-old men.

Beginning in 2005, a forensic pathologist and neuropathologist found CTE in the brains of diseased NFL players Mike Webster, Terry Long, Andre Waters, Justin Strzelczyk, and Tom McHale. Between 2008 and 2010, the bodies of twelve former professional American football players were diagnosed with CTE postmortem by Dr. Ann McKee.

A plaintiff, while working as a police officer, responded to a call at the home of the defendant. The call indicated that the defendant had locked himself inside the house and was threatening to hurt himself. After arriving at the home and making numerous requests of the defendant to enter, the plaintiff ultimately attempted to kick the door down and was seriously injured as a result. He alleged that his injuries were proximately caused by the defendant’s negligence. He did not make any allegations relating to conditions on the premises.

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The common-law firefighter’s rule provides that a firefighter or police officer who enters private property in the course of his employment duties generally cannot bring a civil action against the property owner for injuries sustained as a result of a defect in the premises. The plaintiff appealed from the trial court judgment in favor of the defendant. In granting the defendant’s motion to strike, the trial court concluded that the firefighter’s rule precluded the plaintiff’s sole claim, which was rooted in ordinary negligence. On appeal, the Supreme Court of Connecticut concluded that the firefighter’s rule should not extend beyond claims of premises liability. The court therefore reversed the trial court’s judgment in favor of the defendant and remanded the case to the trial court.

On appeal, the plaintiff asserted that the trial court incorrectly granted the motion to strike because his claim was not barred by the firefighter’s rule. Specifically, he claimed that the issue was controlled by the Connecticut Supreme Court’s decision in Levandoski v. Cone, in which the firefighter’s rule was limited to claims of premises liability.

An 18-year-old woman was fatally shot by Maine police in February. Her mother recently filed notice for a wrongful death lawsuit against the three officers who fired the shots, the town of Vassalboro, Kennebec County, the Vassalboro Police Department, and the head of the Maine State Police. She was appointed the personal representative for her daughter’s estate by a Kennebec County Probate Court judge. She is seeking $500,000 in damages.gun

The victim was shot to death on February 10th of this year on Arnold Road in Vassalboro. A 25-year-old man was also killed in the incident. He was driving a truck in which the victim was the passenger. The man allegedly rammed into a police cruiser, and two Maine police officers and the Vassalboro police chief  all fired their guns. The officers were responding to a reported robbery when the man hit the police cruiser. All three officers have been placed on administrative leave without pay since the shooting.

The woman claims that the victim was merely an innocent bystander. At the time the shots were fired, she’s said, the victim was not a threat to any of the officers or anyone else. She hadn’t committed a crime, and she wasn’t trying to escape or flee. The police didn’t need to use deadly force, she said, and “they could have took that car out.” Her notice of suit claims the agencies had inadequate training and policies to cause the use of force that caused her daughter’s death.

A plaintiff filed suit for negligence under the Massachusetts Tort Claims Act (Act) against the Massachusetts State Police after being attacked by a trained police dog in a parking lot. A state trooper who was an experienced dog handler had been in pursuit of a criminal through that parking lot. The plaintiff sued the police, alleging that the trooper’s conduct in releasing the police dog to capture a criminal in a public space created a foreseeable risk of harm to an innocent bystander. The lower court disagreed and granted summary judgment to the state police, reasoning that the plaintiff’s negligence claim was barred by the immunity provisions of the Act. The plaintiff appealed.

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In reversing, the appeals court first explained that the Act exempts a public employer from liability for any claim based on the performance of a discretionary duty by a public employee, regardless of whether that discretion is abused. The parties agreed that the state police was a public employer immunized from liability by the discretionary function exemption in the Act.

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A defendant and her employer, Eastern Connecticut Health Network, Inc., appealed from a trial court judgment for the plaintiff following a jury trial on his negligence claim resulting from a car accident. The Connecticut Court of Appeals affirmed.

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On November 21, 2012, at approximately 4:45 p.m., the plaintiff exited off Interstate 84 in Manchester. When the left arrow for his lane turned green, he proceeded slowly into the intersection. The defendant, who was traveling east on Deming Street in her Toyota Camry, hit the plaintiff’s car on the driver’s side door. Although the defendant applied her brakes prior to the impact, the plaintiff still sustained serious, life-threatening injuries. Several witnesses saw the accident and gave statements to the police or provided testimony to the jury. The statements and testimony of those witnesses varied greatly. Some of the witnesses stated that the defendant ran through a red light and that the plaintiff had a green light. Other witnesses stated that the plaintiff ran through a red light and that the defendant had a green light.

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A plaintiff was injured after she tripped on a bent stake jutting onto the walkway outside her condominium unit. She thereafter filed suit, alleging that the owner of the complex, Huntington Wood Condominium Trust, and the contractor responsible for snow removal, The Green Company Landscape & Irrigation, Inc., negligently maintained a hazardous condition that caused her injury. The superior court disagreed, finding that she failed to establish that the defendants had actual or constructive notice of a supposedly dangerous condition. The judge therefore granted the defendants’ motions for summary judgment. The plaintiff appealed, and the Massachusetts Court of Appeals affirmed.
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She alleged that in mid-March 2010, she injured herself when she tripped on a stake that poked out onto the walkway next to her condo unit. She passed that stake approximately three times that day before falling. She noticed that it was bent but did not realize it was jutting out onto the walkway. In the evening, she walked to her car. When she returned from her car, she tripped over the stake.

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