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Posts Tagged ‘Massachusetts Court of Appeals’

The Courtroom Sins of Your Attorney: Punishable?

Posted on: December 9th, 2019

By: Thomas Hay

Two recent Massachusetts cases: Wahlstrom v. IPA IV Management Company, Inc., et al., and Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc., et al., were granted motions for a new trial following a jury verdict awarded in the plaintiffs’ favor. The courts’ decisions to award a new trial in both matters involved the plaintiffs’ attorneys improperly questioning witnesses or going over the line in either opening or closing statements.

The defendants in each of these cases urged their respective judges to apply the four-factor framework for considering claims of prejudicial misconduct by an attorney, as set forth by the Massachusetts Appeals Court in its 2014 decision of Fyffe v. Massachusetts Bay Transp. Auth. Most importantly, the fourth factor of the Fyffe framework states that the court should prove “whether the error, in the circumstances, possibly made a difference in the jury’s conclusion.”

However, the Appeals Court, in its decisions in Wahlstrom and Fitzpatrick, held that the Fyffe framework is not a proper standard for a trial judge to use when considering motions for a new trial due to prejudicial attorney misconduct. Rather, the appropriate standard can be found in Evans v. Multicon Construction Corp. That case provides that a judge is to conduct a “survey of a whole case” and determine whether a “miscarriage of justice” would result if the jury’s verdict were upheld.

In the Wahlstrom matter, Judge Wilson temporarily voided a jury award of $4 million for a woman raped in a Boston parking garage. In the Fitzpatrick matter, Judge Brieger temporarily voided a jury award of $150,000 for a woman who required oral surgery after biting into a bone that was inside a Wendy’s hamburger. Each case involved its own set of claimed errors for which the judges relied on in ruling whether a new trial was warranted. Both Judge Wilson and Judge Brieger concluded, respectively, that curative instructions were inadequate to cure the claimed errors and granted motions for a new trial.

In Wahlstrom, the Appeals Court reversed the granting of defense’s motion for a new trial and concluded that the claimed errors upon which Judge Wilson based his decision were not sufficient to rise to the level of a “miscarriage of justice.”

In Fitzpatrick, Judge Brieger oversaw a retrial where a different jury awarded a plaintiff’s verdict of $10,000 – which amounted to $140,000 less than the initial jury award to the plaintiff. The Appeals Court stated, on remand, Judge Brieger “need not reconsider whether aspects of plaintiff’s counsel’s closing [argument] were impermissible.” In its decision, the Appeals Court instructed that a judge is not to act as a “13th juror” and set aside the verdict, just because they would have reached a different result. Nor is a judge to use a mistrial as a form of sanction for attorney misconduct. Moreover, the Appeals Court cautioned that a smaller verdict size awarded in a second case does not necessarily indicate that the jury in the first case was “misled or swept away” when a decision as to liability is consistent in both cases.

The Appeals Court’s decision in both Wahlstrom and Fitzpatrick appear to indicate that trial judges do not have the authority to punish parties for the sins of their attorneys, unless they create a “miscarriage of justice.” As such, greater incentive now exists for attorneys to “toe the line” in regard to courtroom conduct, stopping short of creating such a “miscarriage of justice.”

If you have any questions or would like more information, please contact Thomas Hay at [email protected].

Massachusetts Appeals Court Rules No Immunity for Affirmative Act in Connection with Decedent’s Suicide

Posted on: September 4th, 2019

By: Eric Martignetti

In the recent decision of Williams v. Boston Public Health Commission, the Massachusetts Appeals Court partly reversed the trial court’s dismissal of claims brought by the plaintiff against the Boston Public Health Commission (“Commission”).

The plaintiff alleged negligence against the Commission arising out of the death of the plaintiff’s decedent.  As alleged in the Amended Complaint, the staff at a homeless shelter called 911 to report that the decedent was experiencing suicidal thoughts.  Boston EMS, which is under the control of the Commission, sent an ambulance to the shelter.  The responding EMTs did not restrain the decedent and did not have a police transport to the hospital.  When they arrived at the hospital, the EMTs opened the door to the ambulance, and the decedent ran into the street where she was killed by a car.

The Court stated that the Massachusetts Tort Claims Act (“MTCA”) immunizes public employers from “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”  G. L. c. 258, § 10(j).  Therefore, the Court held that the Commission could not be held liable for its alleged failure to train or supervise the EMTs.

However, the Court stated that the MTCA does not immunize public employers from a claim “based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than [she] was in before the intervention.”  G. L. c. 258, § 10(j).  Therefore, the Court held that the Commission could be held liable for placing the decedent in a worse position because the EMTs transported her from the shelter, where the staff was looking after her and securing help for her, to the hospital, where nobody was able to prevent her from killing herself.

The Court rejected the Commission’s argument that the alleged failure to protect the decedent is an omission from which the Commission should have immunity.  The Court concluded that although the failure to train and supervise was an omission, the transporting of the decedent to the hospital was an affirmative act.

The Court also rejected the Commission’s argument that the EMTs owed not duty to protect the decedent from her own conduct because there was no special relationship between her and the EMTs.  The Court concluded that EMTs have a duty of care to the patients they transport.

If you have any questions or would like more information, please contact Eric Martignetti at [email protected].

Don’t Shoot the Messenger: Tips for Avoiding Claims of Negligent Contract Negotiation

Posted on: September 4th, 2019

By: Catherine Bednar

When negotiating on behalf of a client, an attorney focuses on obtaining the best possible deal, balancing the client’s needs and objectives against the other side’s demands as well as the limitations of the law. An attorney must also be mindful, however, of the possibility the client might someday bring a malpractice claim in if the deal goes sour later.

In Jenkins v. Bakst, 95 Mass. App. Ct. 654 (July 23, 2019), the Massachusetts Court of Appeals recently affirmed an award of summary judgment in favor of an attorney, Bakst, who had negotiated an employment contract on behalf of the Plaintiff, Jenkins. In 2003, Jenkins entered into negotiations with a security services company, Apollo, to join the company as its president and chief operating officer.  Ten years later, when Jenkins left Apollo he was disappointed by the valuation of his stock buyout under the employment agreement.  After challenging the stock valuation, Jenkins settled his claims with Apollo. He then pursued a malpractice claim against his attorney, who had proposed the methodology used in the contract.

Before Bakst entered into any negotiations with Apollo, Jenkins informed Bakst of his wishes regarding the stock buy-back clause. The draft employment agreement prepared by Apollo’s counsel provided for buy-back of Jenkins’s stock at book value. Jenkins told Bakst he wished to receive fair market value for his shares, which he believed should be measured at between twenty-five to thirty-five percent of annual revenue, equivalent to 3 to 4 months of the company’s average revenue. Notably, an existing agreement between Apollo and two other shareholders provided for buy-back of two months of the average annual revenues. Bakst told Apollo’s counsel that Jenkins would not accept book value and believed Apollo’s fair market value should be equal to four months of revenues, not two months. Bakst also suggested an alternative method for establishing Apollo’s fair market value, which Bakst had used in agreements for other clients. Apollo’s counsel accepted Bakst’s proposed alternative methodology.

Jenkins argued Bakst was negligent by failing to follow his instructions for a buy-back provision based on three or four months of revenues. The superior court ruled a fact finder could not find either that Bakst had breached the standard of care or caused Jenkins any injury.

In reaching its decision, the court noted Bakst’s testimony that he had described the alternative valuation method to Jenkins before proposing it to Apollo’s counsel. Jenkins, on the other hand, testified he could not remember his conversations with Bakst prior to signing the employment agreement. The court found there was no evidence Apollo would have accepted Jenkins’ formula based on three to four months of revenues.  The court further noted Jenkins was an

experienced businessperson. It was undisputed he read the employment agreement, initialed the relevant pages, and then signed it.  Because Jenkins could not contradict Bakst’s testimony that he had explained the valuation before Jenkins signed, there was no material fact dispute to survive summary judgment.

The Jenkins case highlights potential pitfalls for attorneys when negotiating contracts. While an attorney may not be able to entirely avoid a lawsuit by an unhappy former client, there are some measures one can take to minimize the risk.

  1. Know the Client: Be sure to ask which terms are most important to the client. What concessions is the client willing to make? What terms are considered deal-breakers?
  2. Communicate Often and In Writing: In Jenkins, the client did not rebut the attorney’s testimony he had counseled his client about the buy-back provision. But what if the client had testified differently? In order to minimize risk, an attorney should take care to communicate with the client during the course of a contract negotiation, ideally in writing. Correspondence to the client detailing what terms have been accepted, rejected or modified, discussing the pros and cons, and advising the client of their options may avoid any misunderstandings down the road as to how the final agreement was reached. Tracking changes in a document is another useful too for showing the client exactly how the contract has changed.
  3. Confirm Understanding of Terms: Make sure the client understands the terms of the contract/agreement. Ask the client in writing if the final version is agreeable and obtain their written confirmation before proceeding.
  4. Read, Initial and Sign: In Jenkins, the court cited the fact that the Plaintiff had initialed the relevant pages and signed the contract. While one might think it goes without saying, say it anyway: have the client read and sign the entire agreement, initialing each page of the contract.

If you have any questions or would like more information, please contact Catherine Bednar at [email protected].