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Posts Tagged ‘Massachusetts’

Massachusetts SJC Expands Rights of Property Owners in Eminent Domain Cases

Posted on: May 26th, 2021

By: Marc Finkel

In a landmark ruling involving the rights of property owners under the Massachusetts “quick take” eminent domain statute (M.G.L. c. 79), the Supreme Judicial Court (“SJC”) recently determined that the “quick take” statute allows for a property owner to challenge the validity of the taking while also accepting a pro tanto (partial) payment from the government entity for the taking.  In the case, Abuzahara v. City of Cambridge, 486 Mass. 818 (2021), the City of Cambridge took Plaintiff’s property by eminent domain through exercise of M.G.L. c. 79.  This caused for the immediate transfer of ownership of the property from the property owner to the government entity without a prior determination of property valuation made by a court. 

M.G.L. c. 79 ordinarily requires either an offer of settlement or a pro tanto payment be made to the property owner within 60 days of the taking of the property by the government entity.  Under the statute, the property owner may also challenge the legal validity of the taking within three years from when the right to damages has vested.  Prior to the SJC’s decision in Abuzahra, it was not clear whether the aggrieved property owner could accept a pro tanto payment for the property and still simultaneously challenge the validity of the taking.

The City of Cambridge offered plaintiff in Abuzahra a pro tanto payment of $3,700,000.00 for property it took pursuant to M.G.L c. 79.  Plaintiff opted to challenge the lawfulness of the taking as permitted under the statute, and, also, made a demand for receipt of the pro tanto payment.  The City of Cambridge refused to turn over the pro tanto payment to plaintiff, and, instead, deposited the pro tanto payment amount in a separate savings account while the lawfulness of the taking was decided.  Ultimately, the SJC found that plaintiff was entitled to both the pro tanto payment from the City of Cambridge while also maintaining the right to challenge the taking in the Trial Court where such simultaneous rights are not expressly prohibited by the “quick take” statute.  

The SJC noted in its decision the importance that eminent domain statutes be strictly construed to protect an individual’s property rights.  Accordingly, by permitting a plaintiff to recover a pro tanto payment while simultaneously allowing a plaintiff to challenge the legality of the taking, the SJC found that the legislative purpose of M.G.L. c. 79 is met.  Specifically, as discussed by the SJC, “the statutorily mandated pro tanto payment ensures that property owners receive some initial recourse following the deprivation of their property, and also incentivizes taking authorities to exercise their significant eminent domain powers with discretion.”  Id.   

Abuzahra is a significant decision that strengthens the rights of property owners as contemplated by M.G.L. c. 79.  As this decision required the SJC to undertake its role in interpreting statutes and resolving ambiguities, it will be interesting to follow what, if anything, the Massachusetts Legislature does with the statutory framework of M.G.L. c. 79 in light of Abuzahra.   

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

Massachusetts Federal Court Rules that Heightened Pleading Requirements Apply in Product Liability Design Defect Cases

Posted on: May 17th, 2021

By: Kevin Kenneally and William Gildea

The United States District Court, District of Massachusetts (Hillman, J.), recently held that Plaintiffs must affirmatively plead and prove that there is a safer alternative product design in order to maintain defect claims against the product manufacturer. Ducat v. Ethicon, Inc., 2021 U.S. Dist. LEXIS 72793 (D. Mass., April 14, 2021) (“Ducat”). The Plaintiff in Ducat brought claims for: (1) negligent design; (2) violation of implied warranty of merchantability; and (3) loss of consortium alleging the Defendant’s vaginal mesh product was defective in its design, caused physical injury to the plaintiff and diminished her quality of life.  The manufacturer moved for judgment on the pleadings on the grounds the Plaintiff did not allege any facts “showing how the design of the mesh was unsafe, what purported design defect caused Plaintiff’s injuries, and failed to plead the existence of a safer alternative design.”  Ducat, 2021 U.S. Dist. LEXIS 72793 at * 5-6.  The District Judge explored prior design defect case law and held “[b]ecause a reasonable alternative design is a required element of design defect, and Plaintiffs have not pled that an alternative design exists in their Complaint, they have not stated a plausible claim for relief[.]”  Ducat, supra at *14-15.  Ultimately, the Court granted leave for the Plaintiff to amend her Complaint to allege, if possible, the existence of a safer alternative design to revive her deficiently pled design defect and implied warranty of merchantability claims.

U.S. District Judge Hillman’s ruling is consistent with Restatement (Third) of Torts, Product Liability (1997 ed.) §2(b), which adopted the risk-utility test to determine if a product is unreasonably unsafe. The Court contrasted earlier case law and authority -including the Restatement (Second) of Torts § 402A, official comment B—which favored the “consumer expectations test.” That test no longer governs Massachusetts design defect cases.

Restatement (Third) Torts, Products Liability, §2(b) states, in part,

“A product is defective when, at the time of sale or distribution…is defective in design. A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.”

The Ducat decision confirms that a reasonable alternative design is a required element of design defect litigation. The products liability defense bar should take note of the heightened pleading requirement and demand at the outset that plaintiffs show proof of an actual feasible alternative—which is in existence and use– to proceed against a manufacturer.  As the Court noted: “the plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff’s harm” in order for the case to survive a motion to dismiss for failure to state a claim.

For more information, please contact Kevin Kenneally at [email protected] or William Gildea at [email protected].

A Massachusetts Attorney Is Suspended for Overbilling Clients

Posted on: April 7th, 2021

By: Nancy Reimer and Eleni Demestihas

In the Matter of [Attorney] (SJC 12850) the Massachusetts Supreme Judicial Court found the attorney not only charged excessive fees to multiple clients but did so intentionally over a matter of months. In 2015, as an equity partner, the attorney did not bill her time contemporaneously. Instead, she tasked her assistant with creating a weekly timesheet capturing her time using only handwritten notes, calendar entries, emails, correspondence, and pleadings. Her assistant did not generally have firsthand knowledge of the time the attorney spent on specific tasks, and the notes she left did not often indicate how much time was spent on each task. In reviewing these timesheets, the attorney did not adjust for any time her assistant might have missed. When her pre-bills arrived, however, she added approximately 450 total hours, including 100 to herself, 110 to a specific senior associate, and 240 to five other associates at the firm. This resulted in the firm billing almost $216,000 more to her clients than the pre-bills indicated.

The attorney claimed the bills represented work she did, even when she credited the work to other attorneys. She excused these misrepresentations by claiming creating new time entries of her own would have been administratively burdensome.  Also, she was benefiting her clients, as they received the benefit of her work at the associates’ price tag. The Board of Bar Overseers did not accept her claims.  The Board of Bar Overseers determined she intentionally inflated her own hours by misrepresenting her appearance at several depositions and calculating she would have had to work 11 hours each work day, every day of the year to meet the number of hours she recorded on her bills.  They suspended her license to practice law for two years.

The attorney appealed the suspension to a Single Justice of the SJC.  In support of her appeal, she submitted affidavits from clients stating how happy they were with her work and did not believe she over charged them for work performed.  Initially, the Single Justice concluded that a two-year suspension would be too harsh a punishment, as the attorney’s clients were satisfied with her work.  

On appeal, however, the Supreme Judicial Court determined the recommended 2-year suspension was an appropriate punishment. The attorney’s conduct was not mitigated by her clients’ satisfaction, the quality of her work, or the amount of stress she might have been under at the time.  The Supreme Judicial Court wrote in its decision, “It is not the sheer number of unworked hours that establishes a misconduct, but rather, the dishonesty manifested by billing for all them”.  Additionally, her ample experience in the practice of law, her evasiveness and lack of candor during testimony, and her failure to acknowledge the seriousness of her conduct necessitated a harsher punishment to protect the public and deter other attorneys from misconduct in the future.  The Supreme Judicial Court found the evidence unequivocally established that the attorney had intentionally billed for services that were not rendered violating Mass. R. Prof. C. 8.4 (c), 8.4 (h) and 1.5 9a). 

In rendering a two- year suspension the Supreme Judicial court found the attorney’s misconduct was more serious than that where an attorney charged an excessive fee.  It also found that a client’s satisfaction with an attorney’s work is no reason to justify excuse the dishonesty involved in billing for work that was not performed. 

For more information, please contact Nancy Reimer at [email protected].

Massachusetts SJC Restricts Standard of Causation in Cases Involving Multiple Tortfeasors

Posted on: March 10th, 2021

By: Marc Finkel

In a landmark decision, the Massachusetts Supreme Judicial Court (“SJC”) recently discontinued use of the substantial contributing factor standard of factual causation in matters where multiple sufficient causes of liability may exist amongst multiple defendants. In Doull v. Foster, SJC-12921 (February 26, 2021), the SJC determined that the traditional “but-for” standard of factual causation should be applied under such circumstances. In coming to this conclusion, the SJC adopted the standard proposed in the Restatement (Third) of Torts and effectively eliminated an alternative standard of factual causation previously applied in Massachusetts for over three decades. 

Doull involved claims including, among other things, wrongful death and medical malpractice against a nurse practitioner and a supervising doctor. Following a jury trial, plaintiff appealed a defense verdict in which the primary issue for review was the trial judge’s use of a “but-for” jury instruction for determining the issue of factual causation rather than an instruction based on the substantial contributing factor standard requested by plaintiff. In affirming the trial court’s use of a “but-for” jury instruction as to causation, the SJC found that the substantial contributing factor standard, in general, created too much confusion amongst juries and too often “invite[d] jurors to skip the factual causation inquiry altogether” when assessing liability amongst multiple tortfeasors.   

In its decision, the SJC analyzed prior application in Massachusetts of the substantial contributing factor standard and noted that the application was largely developed in the context of asbestos or other toxic tort claims involving numerous defendants. In these types of claims, although multiple causes of a plaintiff’s injury could arguably be proven, traditional “but-for” causation could not. In Doull, the SJC clarified that in most cases, even where there are multiple defendants, the traditional “but-for” standard is appropriate for determining factual causation because it is the only standard that “ensures that defendants will only be liable for harms that are actually caused by their negligence and not somehow indirectly related to it.” Accordingly, the SJC affirmatively rejected plaintiff’s argument that the substantial contributing factor standard should be used whenever there is evidence of multiple potential causes of a particular harm. 

The SJC noted that its decision in Doull is applicable to most negligence cases. However, specifically, the SJC did not decide whether this decision also applies in toxic tort and asbestos cases, and deferred ruling on that issue. The SJC contemplates in Doull what it may have to do in such cases, including the possibility of keeping a limited exception to the “but-for” standard of factual causation. In the coming years, it is a virtual certainty that the SJC will be tasked with resolving that issue.

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

No Control, No Duty Owed

Posted on: January 13th, 2021

By: Thomas Hay

In a Massachusetts trial court action, Timothy Lyons v. Phillip C. Farmer Development, Inc., Docket No. 1781-cv-01156, Freeman, Mathis & Gary, LLP prevailed on a motion for involuntary dismissal following the conclusion of the first civil bench trial held in Middlesex County Superior Court since the courts closed in March 2020 due to Covid-19.

The matter involved plaintiff, a thirty-five-year-old experienced framer, who brought a claim for negligence against the defendant, general contractor, resulting from an injury he sustained while performing framing work at a residential construction site. Plaintiff, an employer of the framing subcontractor, alleged the defendant owed him a duty of care to supervise the framing and safety measures utilized by his employer. Specifically, plaintiff claimed the defendant had a non-delegable duty to inspect, supervise, and ensure all appropriate safety regulations and OSHA standards were being utilized, including those set forth in 454 CMR § 10.00 (the “State Regulation”).

The plaintiff, an experienced carpenter and framer, severely injured his left foot and knee after stepping off the end of a saw-horse scaffold (the “scaffold”) while marking the roof’s ridge beam for the installation of the single-family home’s roof. The plaintiff alleged permanent disability preventing him from any meaningful employment. The scaffold was constructed a day or days prior by the plaintiff’s employer and stood no more than six feet above the floor below. The scaffold, which met the definition of a scaffold under the Occupational Safety and Health Administration’s regulations,[1] had no guard rails and the plaintiff was not using fall protection. Fall protection, however, was made available by the plaintiff’s employer who also supplied all tools and equipment necessary to frame the home.

No Duty Owed Through Contract or Control

Under Massachusetts case law, a general contractor has a duty to its subcontractor’s employees if it “retains the right to control the [subcontractor’s] work in any of its aspects, including the right to initiate and maintain safety measures and programs[.]” Corsetti v. Stone Co., 396 Mass. 1, 10 (1985)(adopting the Restatement (Second) of Torts § 414). Thus, only by retaining sufficient control over the subcontractor’s framing work, or the safety of that work, would the defendant owe a legal duty to the plaintiff.

Here, the defendant had no written contract with the plaintiff’s employer and the oral agreement between the parties did not establish any obligation on the defendant to direct or control subcontractor’s work or the safety of that work. Moreover, the evidence at trial established the defendant did not retain control, by contract or in practice, the work of plaintiff’s employer. The defendant did not give direction to the plaintiff, his employer, or any of its employees. In sum, the framing subcontractor was responsible for the means, manner, and methods of its work as well as the safety measures employed.  

Nondelegable Duty?

The plaintiff additionally argued the defendant, as general contractor, had a nondelegable duty of care for the overall safety of persons on the jobsite under the State Regulation. However, the State Regulation applies in the context of the employer-employee relationship. Accordingly, the State Regulation cited by the plaintiff, at Section 10.03(9), is inapplicable as the plaintiff was not an employee of the defendant. Thus, the court found the State Regulation did not impose a duty of care for supervision of safety on the defendant general contractor.

The Superior Court’s decision reaffirms the principle set forth in Corsetti and its progeny that a general contractor may only be held liable to a subcontractor’s injured employer where it exercised or retained meaningful control through contract or its actions on the jobsite.


[1] Additionally, the court, agreeing with the defendant, found the State Regulation governing safety requirements for scaffolds to be in conflict with the applicable OSHA scaffold safety regulation, 29 C.F.R. § 1926.451(g)(1) (the “OSHA Regulation”). The court found the State Regulation, requiring guardrails to be used for scaffolds more than four feet above the floor below, was in conflict with the OSHA Regulation that only required guardrails or fall protection for scaffolds at heights greater than ten feet above the floor below. The court reasoned that the OSHA Regulation, a federal standard, addresses the same safety and health issues as the State Regulation. Because the State Regulation directly, clearly, and substantially conflict with OSHA standards, the court found the State Regulation was preempted by the OSHA Regulation. 

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