“***” Denotes Cases Reported in Mass Lawyers Weekly
A Middlesex superior court jury awarded Robert Feinberg’s client $7.7 million including interest in April 2011. The victim was to have replaced a leaking gasket but the boiler was not prepared properly and the gauges did not accurately report the condition of the tank. Unfortunately, the tank was under pressure and when the repairman went to open the tank to do his work he was severely burned by steam and super-heated hot water. He spent three weeks in the burn unit of a local hospital where he underwent three surgeries. He has had one additional surgery, that to his left elbow, since his hospital release in July 2007…617-341-9841“>Read more.
Supermarket cases are seldom known to result in big recoveries. Marsha Alban defied those odds by settling a serious leg fracture for $1,750,000. The case was extensively “worked up”, both as to facts of the accident and to the complicated nature of the injuries which were sustained. The plaintiff, a wonderful woman in her 50’s, was shopping and had just turned a corner when she approached the heavily trafficked front aisle. Ahead of her on her right, she observed a spill and a single cone. As a result, she moved to the left but unfortunately fell onto her knee. She discovered that she had fallen on a red liquid substance about five feet away from where the original spill was located. In several depositions, it was established that the spill came from a 64-ounce bottle. The defendant conceded that the liquid, which caused the plaintiff to fall came from the original spill several feet away – something, which may seem obvious, but can be a hurdle in cases such as these…617-341-9841“>Read more.
The plaintiff suffered a severely herniated lumbar disc as a result of a fall from a ladder, produced by the defendant ladder manufacturer, which had been purchased at the defendant home improvement store the prior April.
The 16-foot MultiMatic® ladder, which could be configured in a variety of positions, was in the extension position when it gave way at the lowest joint. The 32-year-old plaintiff was propelled approximately 10 feet onto his legs and lower back.
The plaintiffs consisted of the injured husband, his wife and their two minor children. Suit was filed against the manufacturer and retailer alleging negligence, strict liability and Chapter 93A violations…617-341-9841“>Read more.
A 44-year old man, employed by the telephone company, was struck head-on while driving on the job. The plaintiff had to be extricated from the vehicle by the Jaws of Life and sustained a severe ankle fracture. The case was mediated shortly before the trial and settled for $675,000, Middlesex County, a figure that was obtained even though the plaintiff never underwent a fusion of the ankle as had been expected. Feinberg & Alban, P.C. hired an accident reconstructionist, a meteorologist (who disputed the defense contention that their driver was blinded by the sun), a psychiatrist and two orthopedic surgeons.
A 65-year-old single woman was involved in a car crash in which another vehicle took an illegal U-turn and struck the front of her car. She suffered a comminuted fracture of the calcaneus, or heel bone, in her right foot, as well as a less severe fracture of her left calcaneus.…617-341-9841“>Read more
An epileptic male who had failed to take his Dilantin suffered a seizure and fell against an exposed steam heating pipe. In the course of numerous depositions, the several defendants blamed each other for failing to cover the exposed pipe, which reached temperatures above 212 degrees or the point at which water boils and steam is created. A recovery in Suffolk County was obtained despite the plaintiff having failed to take his medication.
The plaintiff was injured when the shoring of a load-bearing wall failed, causing a sudden collapse of the ceiling and trapping his hand between a large ceiling beam and the wall below.
According to the plaintiff, evidence showed that the defendant failed to erect proper shoring for the job by not obtaining an engineer’s drawing and not determining the weight of the ceiling or the shoring capacity of the equipment used.
An engineering survey, required by Massachusetts Building Code and OSHA regulations, had been undertaken for a previously demolished external wall, but not of the subject wall…617-341-9841“>Read more.
The 49-year-old plaintiff was riding her bicycle across an intersection when she was struck by a corporate vehicle.
The plaintiff suffered a Grade 1 open fracture of the left midshaft tibia and fibula, requiring surgery to implant a locking nail-and-rod mechanism into the length of the tibia as well as a screw into the left medial malleolus for stabilization.
She remained an inpatient for 21 days, including stays in the hospital and at a rehabilitation facility…617-341-9841“>Read more.
The 45-year-old plaintiff was injured when his motorcycle was rear-ended by a commercial van while he was stopped at a red light.
The plaintiff suffered a burst fracture of the T12 vertebrae and a wedge-compression fracture of the L1 vertebrae. As a result of the fractures, the T12 vertebrae suffered a loss in height of 50 percent, and the L1, 20 percent.
The plaintiff was treated with physical therapy for seven months after the accident but was unable to continue due to a busy work schedule…617-341-9841“>Read more.
The 66-year-old plaintiff was driving her vehicle when it was struck by an oncoming car that had veered into her lane.
The 17-year-old defendant driver maintained, and witnesses corroborated, that she had skidded on a patch of ice on a road that had yet to be sanded or plowed.
The defendant’s father was also named as a defendant, but solely in his capacity as owner of the vehicle pursuant to G.L. c. 231, Sect. 85A.
Defense counsel argued that it was well-established that the mere fact of skidding did not create liability. In rebuttal, plaintiff’s counsel pointed to other citations suggesting that skidding may be caused or accompanied by negligence…617-341-9841“>Read more.
The plaintiff was the father of a 7-year old girl who lit a candle that caught fire while the father was sleeping in a nearby bedroom. The daughter was rescued but the father sustained severe burns to his back. Despite the potential finding of comparative negligence against the father, Suffolk County was obtained as two experts retained by Feinberg & Alban, P.C. established that the fire alarm control unit had failed in the building.
No medical treatment was received after a brief inpatient hospitalization. The bleed resolved with seemingly no long term effects. Plaintiff’s treating doctor cleared him for all work related activities within two months of the accident…617-341-9841“>Read more.
A 31-year old woman was crossing the street in Boston and not in a crosswalk when she was struck by a Volkswagen, which carried only the minimum limits of insurance coverage. However, investigation revealed that the driver, though operating his own car, was intending to pick up the mail for a local television station when the accident occurred. This provided a significantly larger insurance policy. Despite an unfavorable police report, which described the client as “running” across the street, it was established by Feinberg & Alban, P.C. after numerous depositions that the driver was in the process of taking a U-turn, was late in picking up the mail, had a history of being late at the television station, and was operating on a revoked license. These factors contributed to a $410,000 settlement on the day of the trial, Suffolk County, for the plaintiff’s tibia fracture.
The 54-year-old plaintiff, a part-time assistant librarian at a university, was a passenger in a van that serviced the university employees but was not owned by the university. The van was involved in a two-car accident in January 2005, in which the plaintiff sustained a four-part comminuted fracture of the major proximal humerus.
She underwent surgery, in which a plate and 10 screws were inserted for stabilization.
After a few months, the plaintiff returned to her part-time job at the university but could not return to her second part-time job. She continued to be symptomatic from the fracture, with an AMA impairment rating of 24 percent of her right upper extremity and 14 percent of the whole person…617-341-9841“>Read more.
An 8-year old boy sustained a sulfuric acid burn when playing with a drain cleaner left by a maintenance worker in an apartment complex. The child suffered second-degree burns to the forearm and thighs and was left with keloid formation on the right thigh. Two burn specialists and a child psychologist evaluated the plaintiff. The case settled after mediation but before the court process had begun, as it was established that the maintenance worker clearly disregarded the warnings on the product.
A 53-year old electrician was descending steps in a basement where he had been working. The plaintiff was familiar with the steps and knew that a tread was missing on one of the stairs. He fell while descending and suffered a rotator cuff tear of his left (minor) shoulder. The Homeowner’s insurer paid its full coverage of $300,000.
The July 2010 decision of the Supreme Judicial Court in Papadopoulos v. Target Corporation 457 Mass. 368 was used by Robert Feinberg in obtaining a $295,000.00 settlement at mediation in January of 2011. Two years prior, the 45-year-old plaintiff had walked over hard-packed ice in going to his car, which was parked in the back of his apartment building. Significantly, this was his third time walking over that ice, an argument the defense used in asserting comparative negligence against the plaintiff.
However, the defendant’s contentions were overcome by evidence that their property manager and his assistant had not been present to sand, salt, or treat the ice on the morning of the accident. The weather records showed that precipitation had stopped approximately eleven hours before the plaintiff fell, affording an ample opportunity for the defendant to have treated the ice. Thus, the defendant violated its duty of reasonable care, a duty only recently applied to snow and ice cases and which replaces the former Massachusetts distinction between an unnatural and natural accumulation of snow or ice. The plaintiff sustained a significant head injury but was back to work fulltime two months after the accident. His treatment concluded one and a half years after the accident.
The plaintiff, a 34 year old delivery driver, was struck at an intersection and rolled over in his jeep. Despite the seriousness of the collision, the injuries consisted of muscle strain and a bulging disc at L4-5. The defendant, through its insurance company, hired an orthopedic doctor to review the plaintiff’s records and to conduct a medical examination. The doctor filed a report pursuant to M.G.L.c. 233, 79G. The plaintiff’s attorney took that doctor’s deposition. The doctor was forced to admit that his report focused on the wrong disc space. The case settled shortly thereafter for $285,000 in Middlesex Superior Court.
A 74-year old woman fractured her left (minor) shoulder as a result of a fall over a single step/platform as she was entering a store. With the help of a professional engineer, Feinberg & Alban, P.C. was able to show that the step/platform located in the entrance way was hazardous and, moreover, a single step in itself is inherently dangerous. The plaintiff underwent open reduction and internal fixation (i.e. the insertion of a plate and screws for fracture stabilization) and the case resolved for $285,000, Norfolk County.
At an arbitration hearing, Attorney Marsha Alban successfully received an award of $245,000 for her client, a mail carrier. The postal worker had cut across the lawn of one property and was intending to deliver the mail to the abutting premises when she fell over two wooden “railroad” ties that lay on top of each other.
Not only did the arbitrator find negligence against the landowner, he found no comparative negligence on the postal worker. This was an unusual and an impressive finding. Insurers usually expect that the plaintiff will be found partially at fault for a fall down accident and they negotiate accordingly.
The plaintiff had a cervical fusion with a bone graft followed by physical therapy.
The arbitration decision was made by a retired Massachusetts Appeals Court Judge who also served on the Superior Court.
On Nov. 21, 1998, the 13-year-old plaintiff was a passenger on his 12-year-old friend’s bicycle. As the bicycle entered a main street in Braintree, it was allegedly struck by a pickup truck operated by a driver who was the sole stockholder of the corporate vehicle.
The plaintiff lost consciousness briefly at the scene. Thereafter, he was combative and dream-like. The minor plaintiff was brought by ambulance to the emergency room department of the Quincy Hospital. A CT scan was negative for intracranial injury. He was released that day. During the night, he vomited and his parents brought him back to the hospital where a repeat CT scan was also negative…617-341-9841“>Read more.
The plaintiff was the passenger in a vehicle, insured with $20,000 in coverage, which struck a vehicle turning left; the latter vehicle with a $250,000 policy.
The plaintiff suffered a comminuted ankle fracture, which was reduced in the emergency room. She underwent a course of physical therapy and had completed active treatment within seven months of the accident.
In an evaluation conducted by Dr. George Theodore, a foot/ankle specialist at Massachusetts General Hospital, the plaintiff was referred for an MRI, which showed the development of post-traumatic arthritis. The interpretation was corroborated by an orthopedic radiologist retained by the plaintiff, Dr. Kris Gupta of Rhode Island…617-341-9841“>Read more.